EXHIBIT 10.15
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LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement"), dated as of February 11, 2000, 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
The Borrower desires to borrow from the Bank, and the Bank desires to loan
to the Borrower, an aggregate principal sum of up to Eighteen Million Dollars
($18,000,000), all in accordance with the terms, subject to the conditions and
in reliance on the representations, warranties and covenants set forth herein
and in the other documents and instruments entered into or delivered in
connection with or relating to the loans contemplated by this Agreement
(collectively, including this Agreement, the "Loan Documents").
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
ARTICLE 1
DEFINITIONS AND CONSTRUCTION
Section 1.1 Definitions. In addition to those terms defined throughout
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this Agreement, the following terms, when used herein, shall have the following
meanings.
(a) "Banking Subsidiary" means a Subsidiary of the Borrower that is a
depository institution, as defined in the Federal Deposit Insurance Act, as
amended, and shall include any Person that becomes a Subsidiary of the Borrower,
that is a depository institution, at any time during the term of this Agreement.
(b) "Borrowing" means the borrowing of all Loans from the Bank on a
given date.
(c) "Business Day" means (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day on which the
Bank is authorized or required by law or other government action to close, and
(ii) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Rate Loans, any day which is a
Business Day described in clause (i) above and
which is also a day for trading by and between banks in the London interbank
Eurodollar market.
(d) "Credit Event" means the making of any Loan.
(e) "Eurodollar Rate" means with respect to each Interest Period for
a Eurodollar Rate Loan, the rate per annum (rounded upward, if necessary, to the
nearest 1/8 of 1%) at which deposits in dollars are offered by the Eurodollar
lending office of the Bank to other prime banks in the London interbank market
at approximately 11:00 a.m. London time, on the date which is two Business Days
prior to the commencement of such Interest Period, in an amount approximately
equal to the aggregate principal amount of the Eurodollar Rate Loan to which
such interest rate is to apply and for a period of time comparable to the
Interest Period selected by the Borrower for such Eurodollar Rate Loan, as
adjusted for maximum Federal Reserve Board reserve requirements.
(f) "Eurodollar Rate Loan" means a Loan designated as such by the
Borrower at the time of the incurrence thereof.
(g) "Indebtedness" means any of the indebtedness described in this
paragraph that is pari passu or senior in terms of repayment obligation to any
of the Loans, which indebtedness shall include:
(i) all items arising from the borrowing of money, which
according to GAAP now in effect, would be included in determining total
liabilities as shown on a balance sheet;
(ii) all indebtedness secured by any lien on property owned by
the respective debtor whether or not such indebtedness shall have been assumed;
(iii) all guarantees and similar contingent liabilities in
respect to indebtedness of others; and
(iv) all other interest-bearing obligations evidencing
indebtedness to others.
(h) "Knowledge" or "to the knowledge of" or similar phrases means to
the knowledge of Xxxxx X. Xxxxxxx or Xxxxxx X. Xxxxxxxxxx in their capacities as
President and Chief Executive Officer and as Chief Financial Officer,
respectively.
(i) "Permitted Banking Subsidiary Indebtedness" means obligations
incurred by any Banking Subsidiary 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: (i) any deposits
with or funds collected by such Subsidiary; (ii) any bankers acceptance credit
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of such Subsidiary; (iii) any check, note, certificate of deposit, instrument,
money or letter of credit issued by such Subsidiary; (iv) any check, note,
certificate of deposit, money order, traveler's check, draft or xxxx of exchange
issued, accepted or endorsed by such Subsidiary; (v) any discount with,
borrowing from, or other obligation to, any Federal Reserve Bank; (vi) any
agreement made by such Subsidiary to purchase or repurchase securities, loans or
Federal funds or any interest or participation in any thereof; (vii) any
guarantee or similar obligation incurred by such Subsidiary in the ordinary
course of its banking or trust business; (viii) 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; (ix) any
transaction in which such Subsidiary acts solely in the fiduciary or agency
capacity; and (x) other short-term liabilities similar to those enumerated in
clauses (i) and (vi) above, including United States Treasury tax and loan
borrowings.
(j) "Person" means any individual, bank, corporation (including any
non-profit corporation), general or limited partnership, limited liability
company, joint venture, estate, trust, association, organization, labor union or
other entity or government agency or authority.
(k) "Prime Base Rate" means the rate which the Bank announces from
time to time as its corporate base rate of interest, the Prime Base Rate to
change when and as such corporate base rate changes. The Prime Base Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged by the Bank to a customer. The Bank may make commercial loans
or other loans at rates of interest at, above or below the Prime Base Rate.
(l) "Prime Rate Loan" means any Loan designated or deemed designated
as such by the Borrower at the time of the incurrence thereof or conversion
thereto.
(m) "Subsidiary" means with respect to any Person (the "Owner"), any
corporation or other Person of which securities or other interests having the
power to elect a majority of that corporation's or other Person's board of
directors or similar governing body, or otherwise having the power to direct the
business and policies of that corporation or other Person (other than securities
or other interests having such power only upon the happening of a contingency
that has not occurred) are held by the Owner or one or more of its Subsidiaries.
(n) "Type" means any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Prime Rate Loan or a Eurodollar Rate
Loan.
Section 1.2 Principles of Construction. (a) In this Agreement, unless
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otherwise stated or the context otherwise requires, the following uses apply:
(i) actions permitted under this Agreement may be taken at any time and from
time to time in the actor's sole discretion; (ii) references to a statute shall
refer to the statute and any successor statute, and to all regulations
promulgated under or implementing the statute or successor, as in effect at the
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relevant time; (iii) in computing periods from a specified date to a later
specified date, the words "from" and "commencing on" (and the like) mean "from
and including," and the words "to," "until" and "ending on" (and the like) mean
"to, but excluding"; (iv) references to a governmental or quasi-governmental
agency, authority or instrumentality shall also refer to a regulatory body that
succeeds to the functions of the agency, authority or instrumentality; (v)
indications of time of day mean Chicago, Illinois time; (vi) "including" means
"including, but not limited to"; (vii) all references to sections, schedules and
exhibits are to sections, schedules and exhibits in or to this Agreement unless
otherwise specified; (viii) "dollars" or the symbol "$" means United States
dollars; (ix) all words used in this Agreement will be construed to be of such
gender or number as the circumstances require; and (x) the captions and headings
of articles, sections, schedules and exhibits appearing in or attached to this
Agreement have been inserted solely for convenience of reference and shall not
be considered a part of this Agreement nor shall any of them affect the meaning
or interpretation of this Agreement or any of its provisions.
(b) All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting principles as applied
in the United States in conformity with those used in the preparation of the
Borrower's financial statements referred to in this Agreement ("GAAP"), or
applicable banking rules and regulations, as the case may be. All financial data
submitted pursuant to this Agreement shall be prepared in accordance with such
principles.
ARTICLE 2
AMOUNT AND TERMS OF CREDIT
Section 2.1 The Loans. Subject to and upon the terms and conditions set
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forth herein, the Bank agrees, at any time and from time to time prior to the
close of business on the second anniversary of the date of this Agreement (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 Eighteen Million
Dollars ($18,000,000).
Section 2.2 Notice of Borrowing; Fixed Eurodollar Rate. (a) Whenever the
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Borrower desires to make a Borrowing hereunder, it shall give the Bank at least
two Business Days' prior notice of each Prime Rate Loan and at least three
Business Days' prior notice of each Eurodollar Rate Loan to be made hereunder,
provided that any such notice shall be deemed to have been given on a certain
day only if given before 12:00 noon on such day. Each such notice (each a
"Notice of Borrowing") shall specify the aggregate principal amount of the Loans
to be made pursuant to such Borrowing, the date of such Borrowing (which shall
be a Business Day), whether the Loans being made pursuant to such Borrowing are
to be maintained initially as Prime Rate Loans or Eurodollar Rate Loans, and if
a Eurodollar Rate Loan, the initial Interest Period to be applicable thereto.
Notwithstanding anything contained
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herein to the contrary, the principal amount of each Eurodollar Rate Loan shall
be not less than Fifty Thousand Dollars ($50,000).
(b) Notwithstanding anything contained herein to the contrary, from
time to time during the term of this Agreement, the Borrower may request that
the Bank establish a Eurodollar Rate which shall be effective for the initial
borrowing of the amount of any Loan and for reborrowings up to the amount of
such initial borrowing during a period of ninety (90) days after the date such
Eurodollar Rate is provided to the Borrower (the "Fixed Eurodollar Rate"),
provided, however, that any Fixed Eurodollar Rate provided by the Bank to the
Borrower will only be effective for the Business Day on which it is given to the
Borrower (provided that the Borrower then requests a Loan on such Business Day
based upon such Fixed Eurodollar Rate) and for the succeeding eighty-nine (89)
days, and the Borrower may only direct that a Loan shall be subject to such
Fixed Eurodollar Rate by expressly selecting such Fixed Eurodollar Rate in the
Notice of Borrowing related to such Loan. If the Borrower fails to specify the
Type of Loan in a Notice of Borrowing, or if no express reference is made to a
Fixed Eurodollar Rate that was provided to the Borrower with respect to such
Notice of Borrowing, then the Loan shall be deemed to be a Prime Rate Loan and
bear interest at the Prime Base Rate.
Section 2.3 Disbursement of Funds. No later than 12:00 noon on the date
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specified in each Notice of Borrowing, the Bank will make available to the
Borrower at its office the aggregate amount of the Borrowing.
Section 2.4 Note. The Borrower's obligation to pay the principal of, and
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interest on, all the Loans made by the Bank shall be evidenced by a promissory
note duly executed and delivered by the Borrower substantially in the form of
Exhibit A with blanks appropriately completed in conformity herewith (the
"Note"). The Note shall be: (a) payable to the order of the Bank; (b) dated
the date of this Agreement; (c) in the stated principal amount of Eighteen
Million Dollars ($18,000,000); (d) mature, with respect to each Loan evidenced
thereby, on the Expiry Date; (e) bear interest as provided in the appropriate
clause of Section 2.6 in respect of the Prime Rate Loans and Eurodollar Rate
Loans, as the case may be; and (f) entitled to the benefits of this Agreement.
The Bank will note on its internal records the amount of each Loan made by it
and each payment in respect thereof.
Section 2.5 Conversions. The Borrower shall have the option to convert on
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any Business Day all or a portion of the outstanding principal amount of the
Loans made pursuant to one or more Borrowings of one or more Types of Loan into
a Borrowing of another Type of Loan, provided that Eurodollar Rate Loans may be
converted into Prime Rate Loans only on the last day of the Interest Period
applicable to the Loans being converted. Each such conversion shall be effected
by the Borrower by giving the Bank prior to 12:00 noon at least three Business
Days' prior notice (each a "Notice of Conversion") specifying the Loans to be so
converted and, if to be converted into Eurodollar Rate Loans, the Interest
Period to be initially applicable thereto. Upon any such conversion, the
proceeds thereof will be applied directly on the day of such conversion to
prepay the outstanding principal amount of the Loans being converted.
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Section 2.6 Interest. (a) The Borrower agrees to pay interest in respect
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of the unpaid principal amount of each Prime 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 be equal to the Prime Base Rate in effect from time to time.
(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.
(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. 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.
(d) Accrued (and theretofore unpaid) interest shall be payable: (i)
in respect of each Prime Rate Loan and each Eurodollar Rate Loan, quarterly in
arrears on the first day of each January, April, July and October, and the first
such interest payment shall be due and payable on April 1, 2000; and (ii) in
respect of each Loan, on any prepayment (on the amount prepaid), at maturity
(whether by acceleration or otherwise) and, after such maturity, on demand.
Section 2.7 Interest Periods. Unless otherwise agreed by the Bank in
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writing, the interest period applicable to each Eurodollar Rate Loan requested
by the Borrower (each an "Interest Period") shall, be a three month period,
provided that: (a) the initial Interest Period for any Eurodollar Rate Loan
shall commence on the date of Borrowing of such Loan; (b) if any Interest Period
relating to a Eurodollar Rate Loan begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period, such Interest Period shall end on the last Business Day of such calendar
month; (c) if any Interest Period would otherwise expire on a day which is not a
Business Day, such Interest Period shall expire on the next succeeding Business
day; provided, however, that if any Interest Period for a Eurodollar Rate Loan
would otherwise expire on a day which is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such Interest
Period shall expire on the next preceding Business Day; and (d) no Interest
Period shall extend beyond the Expiry Date. If upon the expiration of any
Interest Period applicable to a Eurodollar Rate Loan, the Borrower has failed
affirmatively to request that the Bank continue such Loan as a Eurodollar Rate
Loan, the Borrower shall be deemed to have elected to convert such Loan into a
Prime Rate Loan effective as of the expiration date of such current Interest
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Period. The Bank shall have no obligation to inform the Borrower of the
potential for automatic conversion of any Eurodollar Rate Loan to a Prime Rate
Loan.
Section 2.8 Increased Costs. If any new or existing statute, treaty or
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regulation (including any regulation promulgated by the Board of Governors of
the Federal Reserve System (the "FRS") or the Office of the Comptroller of the
Currency), or any interpretation thereof by any governmental authority charged
with the administration thereof, or any action by any central bank or other
fiscal authority having jurisdiction over the Bank or any Loans, impose, modify
or deem applicable any tax or any reserve and/or special deposit requirement
against any assets held by, or deposits in or for the amount of any Loan by the
Bank (or any branch or affiliate of the Bank involved in transactions under or
contemplated by the Note), except for such matters which have resulted in a
change in the Eurodollar Rate pursuant to the definition of Eurodollar Rate
contained herein, or any similar measure shall result in a reduction in the
amount of principal or interest receivable by the Bank with respect to any Loans
or an increase in the cost to the Bank with respect to the amount of principal
or interest receivable by the Bank with respect to any Loans or an increase in
the cost to the Bank of funding any Eurodollar Rate Loan in the London interbank
offer rate market (whether or not such Loan is actually so funded) or engaging
in any other transaction material to the maintenance of any Eurodollar Rate
Loans (such reduction in amounts receivable or increases in costs being
hereinafter referred to as "Costs"), the Borrower shall fully indemnify the Bank
for all such Costs and shall compensate the Bank as of the end of each Interest
Period for which the Eurodollar Rate has been determined during which such
measures were in effect for the Costs incurred during such period. All such
Costs shall be determined by the Bank and a statement thereof shall be sent by
the Bank to the Borrower when such Costs have been determined, and such
determinations shall be conclusive and binding on the Borrower in the absence of
manifest error, but the Bank shall, as promptly as practicable, notify the
Borrower of the existence of any event which would (if interest were to be
accrued based on the Eurodollar Rate) require reimbursement by the Borrower of
Costs incurred by the Bank.
Section 2.9 Expenses. Whether or not any Loans are made, the Borrower
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shall: (a) pay all reasonable costs and expenses of the Bank incident to the
transactions contemplated by this Agreement, including all reasonable costs and
expenses, incurred in connection with the negotiation, preparation and execution
of this Agreement and the other Loan Documents, or in connection with any
modification, amendment, alteration or enforcement of any terms of the Loan
Documents, including the Bank's out-of-pocket expenses and the charges of and
disbursements to counsel retained by the Bank; and (b) pay and save the Bank and
all other holders of any portion of the Note 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, or any modification, amendment or alteration of, the terms or provisions of
any of the 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 the Borrower for any of such violations, taxes, interests or penalties paid
by the Bank. The obligations of the Borrower under this Section shall survive
the repayment in full of the Note.
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Section 2.10 Prepayments. The Borrower shall have the right to prepay the
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Loans, without premium or penalty in whole or in part from time to time on the
following terms and conditions: (a) the Borrower shall give the Bank at least
three Business Days' prior notice of its intent to prepay any Eurodollar Rate
Loans, the amount of such prepayment and the Types of Loans to be prepaid and,
in the case of Eurodollar Rate Loans, the specific Borrowing or Borrowings
pursuant to which made; (b) each prepayment shall be in an aggregate principal
amount of at least One Hundred Thousand Dollars ($100,000); and (c) prepayments
of Eurodollar Rate Loans made pursuant to this Section may only be made on the
last day of an Interest Period applicable thereto.
Section 2.11 Method and Place of Payment. All payments under this
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Agreement, the Note and the Pledge Agreement shall be made to the Bank not later
than 12:00 noon on the date when due and shall be made in dollars in immediately
available funds at the Bank's Chicago, Illinois, office identified in this
Agreement. Whenever any payment to be made hereunder or under the Note or the
Pledge Agreement shall be stated to be due on a day which is not a Business Day,
the due date thereof shall be extended to the next succeeding Business Day and,
with respect to payments of principal, interest shall be payable at the
applicable rate during such extension.
Section 2.12 Application of Payments. All payments received by the Bank
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from or on behalf of the Borrower shall first be applied to amounts due under
Section 2.9 (Expenses), second to accrued interest under the Note, and then to
principal amounts outstanding under the Note; provided, however, that after the
Expiry Date, or following and during any Default (as defined below), all
payments received on account of the Borrower's obligations under this Agreement,
the Note, the Pledge Agreement and the other Loan Documents shall be applied in
whatever order, combination and amounts as the Bank, in its sole and absolute
discretion, decides, to all costs, expenses and other indebtedness owing from
the Borrower to the Bank.
Section 2.13 Net Payments. All payments made by the Borrower hereunder or
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under the Note or the Pledge Agreement will be made without setoff, counterclaim
or other defense. All such payments will be made free and clear of, and without
deduction or withholding for, any present or future taxes, levies, imposts,
duties, fees, assessments or other charges of whatever nature now or hereafter
imposed by any jurisdiction or by any political subdivision or taxing authority
thereof or therein (but excluding, except as provided below, any tax imposed on
or measured by the net income of the Bank pursuant to the laws of the
jurisdiction (or any political subdivision or taxing authority thereof or
therein) in which the principal office of the Bank is located).
Section 2.14 Collateral. The Borrower's obligations under this Agreement,
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the Note and any other Loan Documents (collectively, the "Borrower's
Liabilities") shall be secured by the pledge of 100% of the outstanding capital
stock of the Subsidiaries, including PrivateBank and Trust Company, an Illinois
state bank with its main office located in Chicago, Illinois ("PrivateBank"),
and, upon the completion of its formation, The PrivateBank, a federal savings
bank with its main office to be located in St. Louis, Missouri ("PrivateBank St.
Louis"), pursuant to the terms of a Pledge and Security Agreement dated as of
the Closing
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Date between the Borrower and the Bank (the "Pledge Agreement") in the form
attached as Exhibit B.
ARTICLE 3
CONDITIONS
Notwithstanding the earlier execution of this Agreement, the Bank's
obligation to make any Loan shall be subject to the performance by the Borrower
prior to any disbursement hereunder of all of its agreements to be performed
under this Agreement and to the satisfaction of the following further conditions
precedent:
Section 3.1 Documents. The Bank shall have received all of the following
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documents, each duly executed and dated the date of this Agreement, in form and
substance reasonably satisfactory to the Bank and its counsel:
(a) the Note;
(b) the Pledge Agreement;
(c) a copy of the certificate of incorporation of the Borrower
certified by the Secretary or an Assistant Secretary of the Borrower;
(d) a good standing certificate for the Borrower issued as of a
recent date by the Secretary of State of the States of Illinois and Delaware;
(e) copies of the bylaws of the Borrower certified by the Secretary
or an Assistant Secretary of the Borrower;
(f) a copy of the charter of PrivateBank certified by the
Commissioner of the Office of Banks and Real Estate of the State of Illinois
(the "Commissioner");
(g) a good standing certificate for PrivateBank issued as of a recent
date by the Commissioner;
(h) copies of the bylaws of PrivateBank certified by the Secretary or
an Assistant Secretary of PrivateBank;
(i) copies of resolutions of the board of directors of the Borrower
certified by the Secretary or an Assistant Secretary of the Borrower authorizing
the execution, delivery and performance of this Agreement, the Note, the Pledge
Agreement and the other Loan Documents;
(j) copies certified by the Secretary or an Assistant Secretary of
the Borrower of all documents evidencing any necessary corporate action,
consents and approvals of any federal or state governmental department,
commission, board, regulatory authority or
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agency including the FRS (and collectively with the foregoing, the "Governmental
Agencies" or individually, a "Governmental Agency") with respect to this
Agreement, the Note, the Pledge Agreement or any other Loan Document;
(k) an incumbency certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names of the officer or officers of the
Borrower authorized to sign this Agreement, the Note, the Pledge Agreement, any
Notice of Borrowing or Notice of Conversion and any other Loan Documents (and
the Bank may conclusively rely on such certificates until formally advised by a
like certificate of any changes therein);
(l) the original certificate(s) representing all of the securities
constituting the Pledged Security (as defined in the Pledge Agreement)
accompanied by corresponding irrevocable stock power(s) executed in blank;
(m) a safekeeping agreement in the form of Exhibit C pursuant to
which the Bank's agent will hold all of the Pledged Security in safekeeping, in
the State of New York, for the benefit of the Bank;
(n) the opinion of counsel for the Borrower, in customary form
reasonably acceptable to the Bank; and
(o) a certificate signed by the President or Chief Financial Officer
of the Borrower certifying that the conditions specified in this Article have
been satisfied.
Section 3.2 Other Conditions of Borrowing. Notwithstanding any other
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provision of this Agreement, the obligation of the Bank to make any Loan shall
further be subject to satisfaction of the following conditions:
(a) between the date of this Agreement and the date of any Loan,
there shall not have occurred, in the Bank's reasonable discretion, a material
adverse change in the financial condition or affairs of the Borrower and its
Subsidiaries taken as a whole;
(b) no Default, nor any other event that, with the giving of notice
or lapse of time, or both, would constitute a Default, shall have occurred, and
all representations and warranties contained herein and in the other Loan
Documents shall be true and correct in all material respects with the same
effect as though such representation and warranties had been made on and as of
the date of such Credit Event;
(c) no litigation or governmental proceeding shall have been
instituted or, to the knowledge of the Borrower, threatened against the Borrower
or any of its Subsidiaries or any of the respective directors, officers or
shareholders of the Borrower or its Subsidiaries which, in the Bank's reasonable
discretion, would have a material adverse effect on the financial condition or
operations of the Borrower and its Subsidiaries taken as a whole
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(d) all necessary or appropriate actions and proceedings shall have
been taken in connection with, or relating to the transactions contemplated by
this Agreement, and all of the Loan Documents shall have been completed and
tendered for delivery, in substance and form reasonably satisfactory to the
Bank; and
(e) the Bank shall have received in substance and form reasonably
satisfactory to the Bank, all certificates, affidavits, schedules, resolutions,
opinions, notes, and/or other documents which are required by this Agreement, or
which it may reasonably request, including a certificate signed by the President
or Chief Financial Officer of the Borrower certifying that the conditions
specified in paragraphs (a) - (d) of this Section have been satisfied.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Agreement, and to make the Loans, the
Borrower makes the following representations, warranties and agreements as of
the date of this Agreement, which shall survive the execution and delivery of
this Agreement, the Note and the Pledge Agreement and the making of such Loans:
Section 4.1 Organization. Each of the Borrower and its Subsidiaries: (a)
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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.
Section 4.2 Stock of Subsidiaries. All of the capital stock of each of
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the Borrower's Subsidiaries has been duly authorized and validly issued, and is
fully paid and nonassessable. 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 disclosed on
the Borrower's audited financial statements for its most recently ended fiscal
year. Upon the completion of the proposed acquisition of 100% of the capital
stock of Xxxxxxx Bank Illinois, an Illinois state bank with its main office
located in Lake Forest, Illinois ("Xxxxxxx Bank"), Xxxxxxx Bank, will be merged
with and into PrivateBank, PrivateBank will be the resulting bank from such
merger and the Borrower will continue to own 100% of the stock of PrivateBank.
Section 4.3 Use of Proceeds.
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(a) The proceeds of the Loans shall be used by the Borrower for the
purpose of acquiring 100% of the capital stock of Xxxxxxx Bank, to capitalize
PrivateBank St. Louis and for working capital and other general corporate
purposes.
(b) 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.
Section 4.4 Financial Statements. The Borrower has delivered to the Bank
--------------------
copies of its consolidated financial statements as of and for the year ending
December 31, 1998, and as of and for the nine months ending September 30, 1999,
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, 1998,
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.
Section 4.5 Title to Properties.
-------------------
(a) 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.
(b) 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
12
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.
Section 4.6 Legal and Authorized. The borrowing of the 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.
Section 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.
Section 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.
Section 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
13
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. 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.
Section 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.
Section 4.11 Employee Benefit Plans. All employee benefit plans, as
----------------------
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("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 Internal
Revenue Code of 1986, as amended (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.
Section 4.12 No Material Adverse Change. Since December 31, 1998, 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,
14
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.
Section 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.
Section 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 (as defined below)
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. "Hazardous Material" as used herein means any asbestos,
polychlorinated byphenyls and petroleum products, solid wastes, urea
formaldehyde, discharges of sewer or effluent, paint containing lead and any
other hazardous or toxic material, substance or waste which is defined,
determined or identified by those or similar terms or is regulated as such under
any statute, law, ordinance, rule or regulation or by any local, state or
federal authority (whether as the result of any judicial or administrative
interpretation of any such statute, law, ordinance, rule or regulation or
otherwise) including any material, substance or waste which is a hazardous
substance within the meaning of 33 U.S.C. (S)1251 et seq., as amended, or 42
U.S.C. (S)9601 et seq., as amended, or is a hazardous waste within the meaning
of 42 U.S.C. (S)6901 et seq., as amended.
Section 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.
Section 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.
15
Section 4.17 Year 2000. The Borrower has reviewed the areas within its
---------
own businesses and operations and those of its Subsidiaries which could be
adversely affected by, and has developed a program in each case to address on a
timely basis, the "Year 2000 Problem" (i.e., the risk that computer applications
used by the Borrower or any of its Subsidiaries may be unable to recognize and
perform properly date-sensitive functions involving certain dates prior to and
any date after December 31, 1999), and has made related appropriate inquiries of
material suppliers and vendors to it. Based on such review and program, the
Borrower believes that the Year 2000 Problem will not have a material adverse
effect on the Borrower or any of its Subsidiaries or any of its or their
operations. From time to time, at the request of the Bank, the Borrower will
provide to the Bank such updated information or documentation as is reasonably
requested regarding the status of the Borrower's efforts to address the Year
2000 Problem.
Section 4.18 No Misstatement of Material Fact. No information, exhibit,
--------------------------------
report or document furnished by the Borrower to the Bank 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 Bank.
Section 4.19 Survival of Representations and Warranties. The foregoing
------------------------------------------
representations and warranties in this Article shall survive the making of this
Agreement, and execution and delivery of the Note and the Pledge Agreement, and
shall be deemed to be continuing representations and warranties until such time
as the Borrower has satisfied all of its obligations to the Bank, including the
obligation to pay in full all principal, interest and other amounts in
accordance with the terms of this Agreement, the Note and the Pledge Agreement.
ARTICLE 5
COVENANTS
Section 5.1 Negative Covenants. The Borrower agrees that until it
------------------
satisfies all of its obligations to the Bank, 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 following actions, nor permit any of its
Subsidiaries to take any of the following actions, without the prior written
consent of the Bank, which consent shall not be unreasonably withheld:
(a) 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 Note, and that certain subordinated note in the principal
amount of $5,000,000 to be issued to Xxxxxxx International, Inc., Racine,
Wisconsin, in connection with the acquisition by the Borrower of Xxxxxxx Bank,
provided, however, that the foregoing shall not restrict nor operate to prevent:
(i) the obligations of the Borrower owing to the Bank and other
indebtedness and obligations of the Borrower or any of its Subsidiaries from
time to time owing to the Bank;
16
(ii) Permitted Banking Subsidiary Indebtedness;
(iii) 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;
(iv) contingent obligations incurred with respect to the
endorsement of instruments for deposit or collection in the ordinary course of
business;
(v) purchase money indebtedness and capitalized lease
obligations secured by liens permitted by herein in an aggregate amount not to
exceed $2,000,000 at any one time outstanding;
(vi) indebtedness repaid and permanently retired out of the
initial Loan made hereunder; and
(vii) indebtedness not otherwise permitted under this Section in
an aggregate amount not to exceed $2,000,000 at any one time outstanding.
(b) 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:
(i) 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;
(ii) 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;
(iii) 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 $1,000,000 at any one time
outstanding;
17
(iv) liens, charges and encumbrances incidental to the conduct
of the business of the Banking Subsidiaries incurred in the ordinary course of
business and not in connection with the borrowing of money, and liens securing
Permitted Banking Subsidiary Indebtedness in the ordinary course of business;
(v) liens on property of the Borrower or any of its
Subsidiaries created solely for the purpose of securing indebtedness permitted
by Section 5.1(a)(v) hereof, 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;
(vi) liens to secure public funds or other pledges of funds
required by law to secure deposits;
(vii) repurchase agreements, reverse repurchase agreements and
other similar transactions entered into by any Banking Subsidiary in the
ordinary course of its banking or trust business; and
(viii) 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.
(c) engage in any business or activity not permitted by all
applicable laws and regulations;
(d) except for the merger of Xxxxxxx Bank with and into PrivateBank
where PrivateBank is the resulting bank, 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 applicable Subsidiary is the
surviving entity 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;
(e) make any loans or advances whether secured or unsecured to any
Person other than 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;
(f) acquire the capital stock, assets or obligations of or any
interest in another corporation, partnership, trust, limited liability company
or any other entity, except for the acquisition of 100% of the capital stock of
PrivateBank St. Louis and except where such
18
acquisition would not have a material adverse effect on the financial condition
or operations of the Borrower and its Subsidiaries taken as a whole;
(g) 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;
(h) 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;
(i) breach or fail to perform or observe any of the material terms
and conditions of this Agreement, the Note, the Pledge Agreement or any other
document or agreement entered into or delivered in connection with, or relating
to, the Loans; or
(j) 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.
Section 5.2 Affirmative Covenants. The Borrower agrees that until it
---------------------
satisfies all of its obligations to the Bank, 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:
(a) furnish and deliver to the Bank:
(i) as soon as practicable, and in no event later than forty-
five (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 Banking Subsidiaries;
(ii) as soon as practicable, and in no event later than ninety
(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 independent certified public accountants
satisfactory to the Bank 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 Banking Subsidiaries with any state or federal bank
regulatory authority;
19
(iii) immediately after receiving knowledge thereof, notice of
all charges, assessments, actions, suits and proceeding that are proposed or
initiated by, or brought before, any court or governmental department,
commission, board or other administrative agency, in connection with the
Borrower or any of its Subsidiaries, other than ordinary course of business
litigation not involving the FRS, the Federal Deposit Insurance Corporation 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; and
(iv) 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;
(b) within forty-five (45) days after the end of each calendar
quarter, deliver to the Bank a certificate signed by the Chief Financial Officer
of the Borrower, containing a computation of the then current financial ratios
specified in Article 6 of this Agreement, and stating that to his knowledge no
Default or unmatured 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;
(c) 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;
(d) 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;
(e) maintain bonds and insurance for its 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;
(f) 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;
20
(g) 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;
(h) 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;
(i) and shall cause each Subsidiary to, permit the Bank 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 Bank the finances and affairs of the Borrower and of each of its
Subsidiaries) at such reasonable times and reasonable intervals as the Bank may
designate; provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to make available to the Bank any customer lists
or other proprietary information unless such information is required by the Bank
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
(j) provide promptly to the Bank other information concerning the
business, operations, financial condition and regulatory status of the Borrower
and its Subsidiaries as the Bank may from time to time reasonably request.
Section 5.3 Additional Actions. Promptly upon its issuance, the Borrower
------------------
agrees to deliver to the Bank pursuant to this Agreement and the Pledge
Agreement stock certificates representing 100% of the outstanding capital stock
of PrivateBank St. Louis.
ARTICLE 6
DEFAULT
Section 6.1 Events of Default. The happening or occurrence of any of the
-----------------
following events or acts shall each constitute a Default hereunder, and any such
Default shall also constitute a Default under the Note (or any replacement or
substitute note therefor) and the Pledge Agreement and any other Loan Document,
without right to notice or time to cure in favor of the Borrower except as
indicated below:
(a) if the Borrower fails to make any payment of principal or
interest on any Loan or any other payment required under the terms of the Loan
Documents when due and such payment remains unpaid for ten (10) days after the
due date thereof;
21
(b) if the Borrower shall fail to perform or observe any material
covenants or obligations under this Agreement, other than those set forth in the
immediately preceding subsection, and including all material affirmative and
negative covenants set forth in this Agreement, or under any of the other Loan
Documents, and the same remains uncured for thirty (30) days after any executive
officer of the Borrower has knowledge of such failure;
(c) if any material representation or warranty made in any of the
Loan Documents shall be false when made or, for whatever reason, becomes
materially false or inaccurate at any time during the term of this Agreement,
including at the time of any Loan;
(d) if at any time any of the Loan Documents becomes void or
unenforceable in whole or in part;
(e) if the Borrower fails to perform or observe any material covenant
or agreement contained in any other agreement between the Borrower and the Bank,
or if any material condition contained in any agreement between the Borrower and
the Bank is not fulfilled and such failure remains uncured for thirty (30) days
after any executive officer of the Borrower has knowledge of such failure;
(f) if prior to the Expiry Date, there is a change in the ownership
or control (by merger, purchase, consolidation or otherwise) of more than 20% of
the issued and outstanding voting stock of the Borrower or any of its
Subsidiaries and such change in ownership or control would be required under
applicable law to be the subject of any filing with any Government Agency;
(g) if at any time any of the Banking Subsidiaries is not deemed to
be "well capitalized" (in accordance with the regulations of the FDIC);
(h) if the Pledged Security, 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 or comes within the possession of any receiver,
trustee, custodian or assignee for the benefit of creditors;
(i) if the ratio of any Banking Subsidiary's nonperforming assets to
its total stockholders' equity and reserves is at any time more than twenty-five
percent (25%) (for purposes of this paragraph, "nonperforming assets" shall
include, but not be limited to, the sum of all non-accrual loans and loans on
which any payment is ninety (90) days or more past due);
(j) if the aggregate annual net income of the Banking Subsidiaries,
determined in accordance with GAAP, for their most recently ended fiscal year,
shall be less than $2.0 million;
22
(k) if the FRS, the FDIC, the Commissioner or other Governmental
Agency charged with the regulation of the Borrower or any of its Subsidiaries:
(i) issues to the Borrower or any of its Subsidiaries, or
initiates any action, suit or proceeding to obtain against, impose on or require
from the Borrower or any of its Subsidiaries, 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, the effect of which
materially and adversely affects the ability to repay the Loan, or the payments
of any debt by the Borrower, restrictions that make the payment of dividends by
any Subsidiary, the effect of which materially and adversely affects the ability
to repay the Loan, or the payment of debt by the Borrower subject to prior
regulatory approval, a notice or finding under Section 8(a) of the Federal
Deposit Insurance Act, as amended, or any similar enforcement action, measure or
proceeding; or
(ii) issues to any officer or director of the Borrower or any
of its Subsidiaries, 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 to prepay the Loan;
(l) if any Banking Subsidiary 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 Banking Subsidiary;
(m) if the Borrower or any of its Subsidiaries 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 the Borrower or any of its Subsidiaries is
applied for or appointed, and if appointed in a proceeding brought against the
Borrower or any of its Subsidiaries, the Borrower or any of its Subsidiaries,
respectively, by any action or failure to act indicates its approval of, consent
to or acquiescence in such appointment, or within thirty (30) days such
appointment is not vacated or stayed on appeal or otherwise, or shall not
otherwise have ceased to continue in effect;
(n) if any proceedings involving the Borrower or any of its
Subsidiaries are commenced by or against the Borrower or any of its Subsidiaries
under any bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation law or statute of the federal government or any
state government and if such proceedings are instituted against the Borrower or
any of its Subsidiaries, the Borrower or any of its Subsidiaries, respectively,
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 thirty (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
23
(o) if the Borrower or any of its Subsidiaries defaults or 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 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 which results in a material adverse effect
on the operations of the Borrower and its Subsidiaries taken as a whole.
Section 6.2 Remedies of the Bank. Upon the occurrence of a Default, the
--------------------
Bank shall have all rights and remedies provided by applicable law and, without
limiting the generality of the foregoing, may, at its option, declare its
commitments under the Loan Documents to be terminated and the Note shall
thereupon be and become forthwith, due and payable, without any presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower, anything contained herein or in the Note or the Pledge
Agreement to the contrary notwithstanding, and may, also without limitation,
appropriate and apply toward the payment of any amounts due under this Agreement
or the Note or the Pledge Agreement any indebtedness of the Bank to the Borrower
however created or arising, and may also, without limitation, exercise any and
all rights in and to the Pledged Security and any other collateral held by the
Bank. There shall be no obligation to liquidate any such collateral in any order
or with any priority or to exercise any remedy available to the Bank in any
order.
ARTICLE 7
MISCELLANEOUS
Section 7.1 Waiver by the Bank. No failure or delay on the part of the
------------------
Bank in exercising any right, power or remedy hereunder shall operate as a
waiver thereof. No single or partial exercise of any such right, power or remedy
shall preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law. Time is of the
essence in the performance of the covenants, agreements and obligations of the
Borrower and the Bank.
Section 7.2 Entire Agreement; Modification of the Agreement. This
-----------------------------------------------
Agreement and the other Loan Documents constitute the entire agreement between
the parties and supersedes all prior agreements between the Bank and the
Borrower with respect to the subject matter hereof. No amendment, modification,
termination or waiver of any provision in this Agreement, the Note or the Pledge
Agreement, or consent to any departure by the Borrower therefrom, shall be
effective except for the specific purpose for which given and only then if in
writing and signed by the party intending to be bound. No notice to or demand on
the Borrower in any case shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances.
Section 7.3 Notices. All notices, requests, demands and other
-------
communications provided for hereunder shall be: (a) in writing; (b) made in one
of the following manners; and
24
(c) deemed given (i) if and when personally delivered, (ii) on the next business
day if sent by nationally recognized overnight courier addressed to the
appropriate party as set forth below or (iii) on the fifth business day after
being deposited in United States certified or registered mail, and addressed as
follows:
(x) If to the Borrower:
PrivateBancorp, Inc.
00 X. Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx
(y) If to the Bank:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxx, First Vice President
or, as to each party, at such other address as shall be designated by such party
in a notice to each other party complying as to delivery with the terms of this
subsection.
Section 7.4 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by different parties hereto in separate counterparts, each of
which when so constitute but one and the same instrument.
Section 7.5 Successors and Assigns. This Agreement 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, provided, that the Borrower shall not
have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Bank, which consent may be given or denied in the
Bank's sole and absolute discretion.
Section 7.6 Jurisdiction; Service of Process; Waiver. THIS AGREEMENT AND
----------------------------------------
THE OTHER LOAN DOCUMENTS HAVE BEEN NEGOTIATED, EXECUTED AND DELIVERED AT, AND
SHALL BE DEEMED TO HAVE BEEN MADE AT, CHICAGO, ILLINOIS. THE LOANS PROVIDED FOR
HEREIN ARE TO BE FUNDED AND REPAID AT, AND THIS AGREEMENT IS OTHERWISE TO BE
PERFORMED AT, CHICAGO, ILLINOIS AND THIS AGREEMENT 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: (a) ITS JUDICIALLY
OR STATUTORILY PRONOUNCED RULES REGARDING CONFLICT OF LAWS OR CHOICE OF LAW; (b)
WHERE ANY OTHER AGREEMENT IS EXECUTED OR DELIVERED; (c) WHERE ANY PAYMENT OR
OTHER PERFORMANCE REQUIRED BY ANY SUCH AGREEMENT IS MADE OR REQUIRED
25
TO BE MADE; (d) WHERE ANY BREACH OF ANY PROVISION OF ANY SUCH AGREEMENT OCCURS,
OR ANY CAUSE OF ACTION OTHERWISE ACCRUES; (e) WHERE ANY ACTION OR OTHER
PROCEEDING IS INSTITUTED OR PENDING; (f) THE NATIONALITY, CITIZENSHIP, DOMICILE,
PRINCIPAL PLACE OF BUSINESS, OR JURISDICTION OR ORGANIZATION OR DOMESTICATION OF
ANY PARTY; (g) WHETHER THE LAWS OF THE FORUM JURISDICTION OTHERWISE WOULD APPLY
THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF ILLINOIS; OR (h) 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: (i) AGREES THAT ANY SUIT, ACTION
OR OTHER LEGAL PROCEEDING RELATING TO THE LOANS OR ANY OF THE LOAN DOCUMENTS 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; (ii) CONSENTS TO THE JURISDICTION OF EACH SUCH COURT IN ANY SUCH SUIT,
ACTION OR PROCEEDING; (iii) 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 (iv) 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 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.
Section 7.7 Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. Wherever possible,
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law.
Section 7.8 Survival of Representations and Warranties. All covenants,
------------------------------------------
agreements, representations and warranties made by the Borrower herein shall,
notwithstanding any investigation by or knowledge on the part of the Bank, be
deemed material and relied on by the Bank and shall survive the making of this
Agreement, and execution and delivery of the Note and the Pledge Agreement and
shall be deemed to be continuing representations and warranties until such time
as the Borrower has satisfied all of its
26
obligations to the Bank, including the obligation to pay in full all principal,
interest and other amounts due in accordance with the terms of this Agreement,
the Note and the Pledge Agreement.
Section 7.9 Extensions and Renewals. This Agreement shall govern the
-----------------------
terms of any extensions or renewals to the Note, subject to any additional terms
and conditions imposed by the Bank in connection with any such extension or
renewal.
Section 7.10 Interest Rate Regulation. The Borrower hereby represents
------------------------
that the indebtedness evidenced hereby constitutes a loan made by the Bank to
enable the Borrower to carry on a commercial enterprise for the purpose of
investment or profit; and that such loan is a loan for business purposes under
the intent and purview of Ill. Rev. Stat. Ch. 17, Section 6404(c).
Section 7.11 Participations; Assignments. The Bank reserves the right to
---------------------------
sell participations in the Loans. With the Borrower's prior consent, which
consent shall not be unreasonably withheld, the Bank may also otherwise assign,
transfer or hypothecate all or any part of the Loans along with the
corresponding rights in the Loan Documents. The Bank is authorized by the
Borrower to disclose information publicly available about it and its
Subsidiaries to prospective participants and assignees.
Section 6.13 Additional Actions. The Borrower agrees to do such further
------------------
acts and things and to execute and deliver to the Bank such additional
assignments, agreements, powers and instruments, as the Bank may reasonably
require or deem advisable to carry into effect the purposes of this Agreement,
the Note, the Pledge Agreement or any other agreement or instrument in
connection herewith.
[THIS SPACE LEFT INTENTIONALLY BLANK]
27
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
PRIVATEBANCORP, INC. LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxxxx By: /s/ Xxxx Xxxxxxx
----------------------------- ------------------------------
Name: Xxxxxx X. Xxxxxxxxxx Name: Xxxx Xxxxxxx
------------------------ ---------------------------
Title: Chief Financial Officer Title: First Vice President
------------------------ ---------------------------
28
SCHEDULE 4.1
SUBSIDIARIES OF THE BORROWER
EXHIBIT A
REVOLVING NOTE
$18,000,000.00 Chicago, Illinois
_____________, 2000
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 Eighteen
Million United States Dollars (US$18,000,000.00), 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 second anniversary of the date of this Revolving
Note, 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 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
2
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
STATE 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 THE 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 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:___________________________
Name:______________________
Title:_____________________
3
EXHIBIT B
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (this "Pledge Agreement"), dated as of
February 11, 2000, is made by PrivateBancorp, Inc., a Delaware corporation (the
"Pledgor"), for the benefit of LaSalle Bank National Association, a national
banking association with its main office located in Chicago, Illinois (the
"Bank").
RECITALS
A. The Pledgor desires to borrow from the Bank, and the Bank has agreed
to loan to the Pledgor, the principal sum of Eighteen Million Dollars
($18,000,000), all in accordance with the terms, subject to the conditions and
in reliance on the representations, warranties and covenants set forth in that
certain Loan Agreement dated as of February 11, 2000, between the Bank and the
Pledgor (including any and all modifications, amendments or renewals, the "Loan
Agreement").
B. The Pledgor owns Eighty-Eight Thousand Four Hundred Fifty (88,450)
shares of the common stock, $20.00 par value per share of PrivateBank and Trust
Company, an Illinois state bank with its main office located in Chicago,
Illinois ("PrivateBank"), which represents 100% of outstanding capital stock of
the Private Bank (the "PrivateBank Shares").
C. Upon the completion of the formation of The PrivateBank of St. Louis,
a federal savings bank with its main office to be located in St. Louis, Missouri
("PrivateBank St. Louis"), the Borrower will own Forty Thousand (40,000) shares
of the common stock, $100.00 par value per share of PrivateBank St. Louis, which
will represent 100% of the outstanding capital stock of PrivateBank St. Louis
(the "PrivateBank St. Louis Shares").
D. The Pledgor has agreed to provide security for its indebtedness under
the Loan Agreement in accordance with the terms of this Pledge Agreement.
AGREEMENTS
NOW, THEREFORE, in order to induce the Bank to advance funds to the Pledgor
as described in the Loan Agreement, and 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 hereby agree as follows:
Section 1. Grant of Security Interest. To secure the Obligations (as
--------------------------
defined below) and subject to the immediately following sentence, the Pledgor
hereby pledges and grants to the Bank a security interest in and hereby
transfers and delivers to the Bank the following property and documents,
provided, however, that with respect to all such documents or property related
to PrivateBank St. Louis, the Pledgor agrees to transfer and make delivery of
such documents and property promptly upon the completion of the formation of
PrivateBank
St. Louis: (a) the PrivateBank Shares and the PrivateBank St. Louis Shares; (b)
any and all PrivateBank Shares and PrivateBank St. Louis Shares the Pledgor
subsequently acquires, directly or indirectly; (c) any and all other shares of
capital stock hereinafter issued by either or both of PrivateBank or PrivateBank
St. Louis, whether now or hereafter in the possession of the Pledgor or the
Bank, including all substitutions of, and additions to, such stock; (d)
certificates representing the shares of capital stock described in (a), (b) and
(c) above; (e) duly executed and undated, irrevocable stock powers for the
capital stock described in (a), (b) and (c) above, in form and content
satisfactory to the Bank, and all requisite federal and state stock transfer tax
stamps, if any (the items described in (a), (b) and (c) above may collectively
be referred to as the "Pledged Stock"); (f) all income and profits thereof, all
distributions thereon, all other proceeds thereof and all rights, benefits and
privileges pertaining to or arising from the Pledged Stock; and (g) such other
collateral that may be provided after the date hereof to secure the Obligations.
All property at any time pledged with the Bank hereunder or in which the Bank is
granted a security interest hereunder (whether described herein or not), and
subject to the provisions of Section 3 below, all income therefrom and proceeds
thereof, may be referred to collectively as the "Pledged Security."
Section 2. Obligations. The obligations secured by this Pledge Agreement
-----------
are the following (referred to collectively as the "Obligations"):
(a) all obligations and agreements of the Pledgor contained in
(including, but not limited to, the payment of all indebtedness of the Pledgor
in respect of) the Loan Agreement;
(b) all principal, interest and other amounts due to the Bank under
that certain Revolving Note of even date herewith in the principal amount of
Eighteen Million Dollars ($18,000,000) from the Pledgor to the Bank and
including any and all modifications, extensions, renewals or refinancings
thereof (the "Note");
(c) all sums advanced by, or on behalf of, the Bank in connection
with, or relating to, the Loan Agreement, the Note or the Pledged Security
including, but not limited to, any and all sums advanced to preserve the Pledged
Security, or to perfect the Bank's security interest in the Pledged Security;
(d) in the event of any proceeding to enforce the satisfaction of the
Obligations, or any of them, or to preserve and protect its rights under the
Loan Agreement, the Note, 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 Security, or of any exercise
by the Bank of its rights, together with reasonable attorneys' fees, expenses
and court costs; and
(e) any indebtedness, obligation or liability of the Pledgor to the
Bank, whether direct or indirect, joint or several, absolute or contingent, now
or hereafter existing, however created or arising and however evidenced.
Section 3. Additional Terms. (a) The Pledgor agrees that the Bank shall
----------------
have full and irrevocable right, power and authority, to collect, withdraw or
receipt for all amounts due
2
or to become due and payable upon, in connection with, or relating to, the
Pledged Security, to execute any withdrawal receipts respecting the Pledged
Security and to endorse the name of the Pledgor on any or all documents,
instruments or commercial paper given in payment thereof, and at the Bank's
discretion to take any other action, including, but not limited to, the transfer
of any Pledged Security into the Bank's own name or the name of any nominee for
the Bank, which the Bank may reasonably deem necessary or appropriate to
preserve or protect the Bank's interest in any of the Pledged Security.
(b) Unless a Default (as defined below) shall have occurred, the
Pledgor shall be entitled to vote any and all shares of the Pledged Stock and to
give consents, waivers and ratifications in respect thereof, provided that no
vote shall be cast, no consent, waiver or ratification shall be given and no
action shall be taken by the Pledgor which would violate or be inconsistent with
any of the terms of the Loan Agreement, the Note or this Pledge Agreement, or
which would have the effect of impairing the position or interests of the
Pledgor or any holder of the Note. All such rights of the Pledgor to vote and
to give consents, waivers and ratifications shall cease upon the occurrence of a
Default.
(c) Unless a Default shall have occurred, all dividends and other
distributions payable in respect of the Pledged Security shall be paid to the
Pledgor. Upon the occurrence of a Default, all such dividends and other
distributions and payments shall be paid to the Bank. After a Default shall
have occurred, all such amounts paid in respect of the Pledged Security shall,
until paid or delivered to the Bank, be held in trust for the benefit of the
Bank as additional Pledged Security to secure the Obligations.
Section 4. Representations and Warranties. The Pledgor further
------------------------------
represents and warrants, as of the date hereof, that:
(a) The Pledgor is the legal, record and beneficial owner of, and has
good and marketable title to, the Pledged Security, subject to no lien, claim,
security interest or other encumbrance, except the security interest created by
this Pledge Agreement or otherwise in favor of Bank, provided, however, that the
Pledgor will be the legal, record and beneficial owner of, and have good and
marketable title to, the PrivateBank St. Louis Shares upon the completion of the
formation of PrivateBank St. Louis.
(b) The Pledged Security is genuine and in all respects represents
what it purports to be and all the shares of the Pledged Security have been duly
and validly issued, and are fully paid and non-assessable.
(c) The pledge, assignment and delivery of the Pledged Security
pursuant to this Pledge Agreement creates a valid perfected security interest in
the Pledged Security, and the proceeds thereof, subject to no prior lien, claim,
security interest or other encumbrance or to any agreement purporting to grant
to any third party a security interest in the assets of the Pledgor which would
include any of the Pledged Security (except as may exist in favor of the Bank).
(d) The Pledgor has full right, power and authority to enter into, to
execute and to deliver this Pledge Agreement and this Pledge Agreement is
binding upon, and enforceable against the Pledgor in accordance with its terms,
subject to applicable bankruptcy,
3
insolvency, reorganization, moratorium or similar laws affecting the rights of
creditors generally, and general principles of equity.
(e) None of the Pledged Stock constitutes margin stock, as defined in
Regulation U promulgated by the Board of Governors of the Federal Reserve
System.
Section 5. Covenants. The Pledgor further agrees that:
---------
(a) Without the prior written consent of the Bank, the Pledgor will
not sell, assign, transfer, exchange or otherwise dispose of, or grant any
option with respect to, the Pledged Security, nor will it create, incur or
permit to exist any lien, claim, security interest or other encumbrance with
respect to any of the Pledged Security, or any interest therein, or any proceeds
thereof, except for the security interest provided for by this Pledge Agreement.
(b) The Pledgor will at all times defend the Bank's right, title and
security interest in and to the Pledged Security and the proceeds thereof
against any and all claims and demands of any person adverse to the claims of
the Bank.
(c) The Pledgor will take such action and execute such documents as
the Bank may from time to time request relating to the Pledged Security or the
proceeds thereof, including, but not limited to, the filing of UCC-1 financing
statements, in form reasonably satisfactory to the Bank and its counsel, with
the Secretaries of State of Illinois and Missouri in favor of the Bank with
respect to the Pledged Security and the proceeds thereof.
(d) The Pledgor shall pay any fees, assessments, charges or taxes
arising with respect to the Pledged Security. In case of failure by the Pledgor
to pay any such fees, assessments, charges or taxes, the Bank shall have the
right, but shall not be obligated, to pay such fees, assessments, charges or
taxes, as the case may be, and, in that event, the cost thereof shall be payable
by the Pledgor to the Bank immediately upon demand together with interest at the
applicable rate set forth in the Note from the date of disbursement by the Bank
to the date of payment by the Pledgor.
Section 6. Default. The Pledgor shall be in default under this Pledge
-------
Agreement upon the occurrence of any one or more of the following events or
conditions (each a "Default"):
(a) any "Default" under the terms of and as defined in the Loan
Agreement;
(b) nonpayment of any of the Obligations when due, whether by
acceleration or otherwise; and
(c) the claim or creation of any lien, claim, security interest or
other encumbrance upon any of the Pledged Security or the making of any levy,
judicial seizure, or attachment thereof or thereon which is not contested in
good faith by appropriate legal or other action by Pledgor in a manner
diligently pursued and any action or failure to act does not indicate its
approval of, or consent to, or acquiescence of, such lien, claim, levy, judicial
seizure or attachment
4
Section 7. Rights of Parties upon Default. (a) In the event of the
------------------------------
occurrence of a Default, in addition to all the rights, powers and remedies the
Bank shall be entitled to exercise, whether vested in the Bank by the terms of
this Pledge Agreement, the Loan Agreement or the Note, or by law, equity or
statute (including, but not limited to, Article 9 of the Illinois Uniform
Commercial Code) or otherwise, for the protection and enforcement of its rights
in respect of the Pledged Security, the Bank may be entitled to, without
limitation (but is under no obligation to the Pledgor so to do):
(i) transfer all or any part of the Pledged Security into
the Bank's name or the name of its nominee or nominees;
(ii) after first obtaining all necessary regulatory
approvals, vote all or any part of the Pledged Security (whether or not
transferred into the name of the Bank or any nominee) and give all consents,
waivers and ratifications in respect of the Pledged Security and otherwise act
with respect thereto as though it were the outright owner thereof;
(iii) at any time or from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the Pledged Security,
or any interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof or to redeem or otherwise (all of which are
hereby waived by the Pledgor), for cash, on credit or for other property, for
immediate or future delivery without any assumption of credit risk and for such
price or prices and on such terms as the Bank in its absolute discretion may
determine, provided that unless, in the sole discretion of the Bank, any of the
Pledged Security threatens to decline in value or is or becomes a type sold on a
recognized market, the Bank will give the Pledgor reasonable notice of the time
and place of any public sale thereof, or of the time after which any private
sale or other intended disposition is to be made. Any requirements of reasonable
notice shall be met if such notice is mailed to the Pledgor in accordance with
the notice requirements set forth in the Loan Agreement, at least ten days
before the time of the sale or disposition. Any sale of any of the Pledged
Security conducted in conformity with customary practices of banks, insurance
companies or other financial institutions disposing of property similar to the
Pledged Security shall be deemed to be commercially reasonable. Any remaining
Pledged Security shall remain subject to the terms of this Pledge Agreement; and
(iv) collect any and all money due or to become due and
enforce in the Pledgor's name all rights with respect to the Pledged Security.
(b) Unless prohibited by law, Pledgor agrees to give the Bank, any
prospective purchaser (pursuant to Section 6(a)(iii) above) of the Pledged
Security and their respective representatives, full access to further
information (including, but not limited to, records, files, correspondence, tax
work papers and audit work papers) relating to or concerning the Pledgor.
Section 8. Remedies Cumulative. Each right, power and remedy of the
-------------------
Bank provided in this Pledge Agreement or now or hereafter existing at law or in
equity or by statute or otherwise shall be cumulative and concurrent and shall
be in addition to every other right, power or remedy provided for in this Pledge
Agreement or now or hereafter existing at law or in equity or by statute or
otherwise. The exercise or partial exercise by the Bank of any one or
5
more of such rights, powers or remedies shall not preclude the simultaneous or
later exercise by the Bank of all such other rights, powers or remedies, and no
failure or delay on the part of the Bank to exercise any such right, power or
remedy shall operate as a waiver thereof.
Section 9. Waiver of Defenses. No renewal or extension of the time of
------------------
payment of the Obligations; no release or surrender of, or failure to perfect or
enforce, any security interest for the Obligations; no release of any person
primarily or secondarily liable on the Obligations (including any maker,
endorser or guarantor); no delay in enforcement of payment of the Obligations;
and no delay or omission in exercising any right or power with respect to the
Obligations or any security agreement securing the Obligations shall affect the
rights of the Bank in the Pledged Security.
Section 10. Other Waivers. Waiver by the Bank of any Default hereunder,
-------------
or of any breach of the provisions of this Pledge Agreement by the Pledgor, or
any right of the Bank hereunder, shall not constitute a waiver of any other
Default or breach or right, nor the same Default or breach or right on a future
occasion.
Section 11. Severability. Whenever possible, each provision of this
------------
Pledge Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but, if any provision of this Pledge Agreement shall
be held to be prohibited or invalid under applicable law, such provision shall
be ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Pledge Agreement.
Section 12. Pledgor's Obligations Absolute. The obligations of the
------------------------------
Pledgor under this Pledge Agreement shall be absolute and unconditional and
shall remain in full force and effect without regard to, and shall not be
released, discharged or in any way impaired by any circumstance whatsoever,
including without limitation: (a) any amendment or modification of the Note, the
Loan Agreement or any document or instrument provided for herein or therein or
related thereto, or any assignment, transfer or other disposition of any
thereof; (b) any waiver, consent, extension, indulgence or other action or
inaction under or in respect of any such document or instrument or any exercise
or non-exercise of any right, remedy, power or privilege under or in respect of
any such document or instrument or this Pledge Agreement; (c) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or similar proceeding with respect to the Pledgor or any of its properties or
creditors; or (d) any limitation on the Pledgor's liabilities or obligations
under any such instrument or any invalidity or unenforceability, in whole or in
part of any such document or instrument or any term thereof; whether or not the
Pledgor shall have notice or knowledge of the foregoing.
Section 13. Termination. This Pledge Agreement shall terminate upon the
-----------
receipt by the Bank of evidence satisfactory to the Bank in the Bank's sole and
absolute discretion of the payment in full of the Obligations. At the time of
such termination, the Bank, at the request and expense of the Pledgor, will
execute and deliver to the Pledgor a proper instrument or instruments
acknowledging the satisfaction and termination of this Pledge Agreement and any
necessary documents to release any UCC-1 financing statements filed in
connection with the Pledged Security, and will duly assign, transfer and deliver
to the Pledgor such of the
6
Pledged Security as has not yet theretofore been sold or otherwise applied or
released pursuant to this Pledge Agreement.
Section 14. Further Assurances. The Pledgor, at its expense, will duly
------------------
execute, acknowledge and deliver all such instruments and take all such action
as the Bank from time to time may reasonably request in order further to
effectuate the purposes of this Pledge Agreement and to carry out the terms
hereof. The Pledgor, at its expense, will at all times cause this Pledge
Agreement (or a proper notice or statement, in respect hereof) to be duly
recorded, published and filed and rerecorded, republished and refiled in such
manner and in such places, if any, and will pay or cause to be paid all such
recording, filing and other taxes, fees and charges, if any, and will comply
with all such statutes and regulations, if any, as may be required by law in
order to establish, perfect, preserve and protect the rights and security
interests of the Bank hereunder.
Section 15. Notices. All communications provided for or related hereto
-------
shall be given in accordance with the notice requirements of the Loan Agreement.
Section 16. Amendments. Any term of this Pledge Agreement may be amended
----------
only with the written consent of the Pledgor and the Bank. Any amendment
effected in accordance with this Section shall be binding upon each holder of
the Note at the time outstanding, each future holder of the Note and the
Pledgor.
Section 17. Assigns. This Pledge Agreement and all rights and liabilities
-------
hereunder and in and to any and all Pledged Security shall inure to the benefit
of the Bank and its successors and assigns, and shall be binding on the Pledgor
and the Pledgor's successors and assigns; provided, however, the Pledgor may not
assign its rights or liabilities hereunder or to any of the Pledged Security
without the written consent of the Bank.
Section 18. Miscellaneous. This Pledge Agreement embodies the entire
-------------
agreement and understanding between the Bank and the Pledgor and supersedes all
prior agreements and understandings relating to the subject matter hereof. The
headings in this Pledge Agreement are for purposes of reference only and shall
not limit or otherwise affect the meaning hereof. Capitalized terms contained
herein and otherwise undefined shall have the meanings given them in the Loan
Agreement.
Section 19. Governing Law. THIS PLEDGE AGREEMENT HAS BEEN NEGOTIATED,
-------------
EXECUTED AND DELIVERED AT, AND SHALL BE DEEMED TO HAVE BEEN MADE AT, CHICAGO,
ILLINOIS. THE LOANS REFERENCED HEREIN ARE TO BE FUNDED AND REPAID AT, AND THIS
PLEDGE AGREEMENT IS OTHERWISE TO BE PERFORMED AT, CHICAGO, ILLINOIS AND THIS
PLEDGE AGREEMENT 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
AGREEMENT IS EXECUTED OR DELIVERED; (III) WHERE ANY PAYMENT OR OTHER PERFORMANCE
REQUIRED BY ANY SUCH AGREEMENT IS MADE OR REQUIRED TO BE MADE; (IV) WHERE ANY
BREACH OF ANY PROVISION OF ANY SUCH AGREEMENT OCCURS, OR ANY
7
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 STATE OF ILLINOIS; OR (VIII) ANY
COMBINATION OF THE FOREGOING. AS PART OF THE CONSIDERATION FOR NEW VALUE THIS
DAY RECEIVED, PLEDGOR 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 PLEDGOR IN ANY JURISDICTION OTHER THAN
THE NORTHERN DISTRICT OF ILLINOIS OR XXXX COUNTY, ILLINOIS; THEREFORE, PLEDGOR
IRREVOCABLY (A) AGREES THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING RELATING
TO THE PLEDGE AGREEMENT AND/OR THE LOANS REFERENCED HEREIN 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 PLEDGOR 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. PLEDGOR WAIVES TRIAL BY JURY AND ANY OBJECTION TO JURISDICTION AND
VENUE OF ANY ACTION INSTITUTED HEREUNDER AND AGREES NOT TO ASSERT ANY 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
PLEDGOR OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
[THIS SPACE LEFT INTENTIONALLY BLANK]
8
The Pledgor acknowledges that this Pledge Agreement is and shall be
effective upon execution by the Pledgor and delivery to and acceptance hereof by
the Bank, and it shall not be necessary for the Bank to execute any acceptance
hereof or otherwise to signify or express its acceptance hereof to the Pledgor.
PRIVATEBANCORP, INC. LASALLE BANK NATIONAL ASSOCIATION
By:_______________________________ By:____________________________
Name: _________________________ Name:_______________________
Title:_________________________ Title:______________________
9
EXHIBIT C
COLLATERAL SAFEKEEPING AGREEMENT
THIS COLLATERAL SAFEKEEPING AGREEMENT (this "Agreement"), dated as of
February 11, 2000, is entered into by 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"), and European American Bank, a New York state banking corporation (the
"Custodian").
A. The Bank and the Borrower have previously entered into that certain
Loan Agreement dated as of February 11, 2000 (the "Loan Agreement"), and a
related Pledge and Security Agreement dated as of February 11, 2000 (the "Pledge
Agreement"), in connection with a revolving credit in the amount of $18,000,000
(collectively, and as the same are extended, modified or reviewed, the "Loan");
B. The Loan is secured by, among other things, Eighty-Eight Thousand Four
Hundred Fifty (88,450) shares of the common stock, $20.00 par value per share of
PrivateBank and Trust Company, an Illinois state bank with its main office
located in Chicago, Illinois, and a wholly-owned subsidiary of the Borrower (the
"PrivateBank Shares").
C. Upon the completion of the formation of The PrivateBank, a federal
savings bank with its main office to be located in St. Louis, Missouri
("PrivateBank St. Louis"), the Borrower has further agreed to secure the Loan
with Forty Thousand (40,000) shares of the common stock, $100.00 par value per
share of PrivateBank St. Louis, which will represent 100% of the outstanding
capital stock of PrivateBank St. Louis (the "PrivateBank St. Louis Shares").
D. The Borrower has requested the aforesaid collateral shares of stock be
held by the Custodian, and the Bank has agreed to such request, subject to the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree
as follows:
1. Collateral Shares. (a) As security for the payment of the obligations
-----------------
of the Borrower to the Bank, whether now or hereafter existing and howsoever
evidenced, or any extension or renewal thereof, including, without limitation,
all obligations under the Loan Agreement, the related Revolving Note dated as of
February 11, 2000, and the Pledge Agreement (collectively, the "Obligations"),
the Borrower has previously pledged and assigned to the Bank under the Loan
Agreement and the Pledge Agreement, as the same may be amended from time to
time, among other things, the PrivateBank Shares and the PrivateBank St. Louis
Shares and the Pledged Security, as defined in the Pledge Agreement
(collectively 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 Shares"); and
(b) The Collateral Shares are concurrently herewith being delivered
to the Custodian for safekeeping.
2. Collateral Shares. Until the Custodian shall receive written notice
-----------------
from the Bank that all of the Obligations have been fully paid and satisfied,
the parties hereto agree as follows:
(a) The Custodian is hereby appointed as agent for the Bank, as
secured party, and the Custodian shall hold and retain possession of the
Collateral Shares for the Bank as security for the payment of the Obligations;
(b) The Borrower shall be unable to withdraw any of the Collateral
Shares without the Bank's prior written consent;
(c) The Custodian shall deliver all or any part of the Collateral
Shares to the Bank upon its request at any time; and
(d) The Bank's receipt for any of the Collateral Shares so delivered
by the Custodian shall be a full and complete receipt and acquittance to the
Custodian as fiduciary for the Collateral Shares.
3. Acceptance. The Custodian hereby acknowledges that the Collateral
----------
Shares have been pledged as Collateral for the Obligations, and the Custodian
hereby accepts appointment as agent for the Bank, 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 Shares.
The Collateral Shares have been coded as assigned in the records of the
Custodian, and none of the Collateral Shares will be released by the Custodian
without the prior written consent of the Bank.
4. Indemnity; Assumption of Risk. (a) To the fullest extent permitted by
-----------------------------
law, the Borrower shall defend, indemnify and hold harmless each of the Bank 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.
(b) The Borrower and the Borrower's counsel have requested that the
Bank 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 Shares to the Bank within a
reasonable period of time following receipt of a proper request to do so from
the Bank, unless the Custodian is prohibited or restrained from delivering the
Collateral Shares by virtue of any judicial order, decree or other legal
process.
2
IN WITNESS WHEREOF, this Agreement has been signed as of the date first
above appearing.
ATTEST: LASALLE BANK NATIONAL ASSOCIATION
By: ____________________________ By:____________________________
Name: ______________________ Name: _____________________
Title:______________________ Title:_____________________
ATTEST: PRIVATEBANCORP, INC.
By:____________________________ By:____________________________
Name: _____________________ Name: _____________________
Title:_____________________ Title:_____________________
ATTEST: EUROPEAN AMERICAN BANK
By:____________________________ By:____________________________
Name: _____________________ Name: _____________________
Title:_____________________ Title:_____________________
