PREFERRED SECURITIES GUARANTEE AGREEMENT by and between PRIVATEBANCORP, INC., as Guarantor and WILMINGTON TRUST COMPANY, as Guarantee Trustee relating to PRIVATEBANCORP CAPITAL TRUST IV Dated as of May 22, 2008
EXHIBIT
4.6
by and
between
as
Guarantor
and
WILMINGTON TRUST
COMPANY,
as
Guarantee Trustee
relating
to
PRIVATEBANCORP
CAPITAL TRUST IV
Dated as
of May 22, 2008
TABLE OF
CONTENTS
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1
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Section
1.1
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Definitions
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1
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Article II TRUST
INDENTURE ACT
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4
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Section
2.1
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Trust
Indenture Act; Application
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4
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Section
2.2
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List
of Holders
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4
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Section
2.3
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Reports
by the Guarantee Trustee
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4
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Section
2.4
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Periodic
Reports to the Guarantee Trustee
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4
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Section
2.5
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Evidence
of Compliance with Conditions Precedent
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5
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Section
2.6
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Events
of Default; Waiver
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5
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Section
2.7
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Event
of Default; Notice
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5
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Section
2.8
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Conflicting
Interests
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5
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Article III POWERS,
DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
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5
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Section
3.1
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Powers
and Duties of the Guarantee Trustee
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5
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Section
3.2
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Certain
Rights of Guarantee Trustee
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7
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Section
3.3
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Compensation;
Indemnity; Fees
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8
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Article IV GUARANTEE
TRUSTEE
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9
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Section
4.1
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Guarantee
Trustee; Eligibility
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9
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Section
4.2
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Appointment,
Removal and Resignation of the Guarantee Trustee
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9
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Article V GUARANTEE
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10
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Section
5.1
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Guarantee
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10
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Section
5.2
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Waiver
of Notice and Demand
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10
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Section
5.3
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Obligations
Not Affected
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10
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Section
5.4
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Rights
of Holders
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11
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Section
5.5
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Guarantee
of Payment
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11
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Section
5.6
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Subrogation
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11
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Section
5.7
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Independent
Obligations
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11
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Article VI COVENANTS
AND SUBORDINATION
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12
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Section
6.1
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Subordination
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12
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Section
6.2
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Pari
Passu Guarantees
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12
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Article VII TERMINATION
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12
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Section
7.1
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Termination
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12
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Article VIII MISCELLANEOUS
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12
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Section
8.1
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Successors
and Assigns
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12
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Section
8.2
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Amendments
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13
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Section
8.3
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Notices
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13
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Section
8.4
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Benefit
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13
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Section
8.5
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Governing
Law
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14
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Section
8.6
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Counterparts
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14
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i
GUARANTEE AGREEMENT, dated as
of May 22, 2008, between PRIVATEBANCORP, INC., a
Delaware corporation (the “Guarantor”), and WILMINGTON TRUST COMPANY, as
trustee (the “Guarantee Trustee”), for the benefit of the Holders (as defined
herein) from time to time of the Preferred Securities (as defined herein) of
PRIVATEBANCORP CAPITAL TRUST
IV, a Delaware statutory trust (the “Issuer Trust”).
RECITALS
OF THE GUARANTOR AND THE ISSUER TRUST
WHEREAS, pursuant to an
Amended and Restated Declaration of Trust, dated as of May 22, 2008 (the
“Declaration of Trust”), among PrivateBancorp, Inc., as Sponsor, Wilmington
Trust Company, as Property Trustee, Wilmington Trust Company, as Delaware
Trustee, and the Administrative Trustees named therein, the Issuer Trust is
issuing up to $125,000,000 aggregate Liquidation Amount (as defined in the
Declaration of Trust) of its 10.00% Preferred Securities (liquidation amount
$25.00 per Preferred Security) (the “Preferred Securities”), representing
preferred undivided beneficial interests in the assets of the Issuer Trust and
having the terms set forth in the Declaration of Trust; and
WHEREAS, the Preferred
Securities will be issued by the Issuer Trust and the proceeds thereof, together
with the proceeds from the issuance of the Issuer Trust’s Common Securities (as
defined herein), will be used to purchase the Debentures (as defined in the
Declaration of Trust) of the Guarantor, which Debentures will be deposited with
Wilmington Trust Company, as Property Trustee under the Declaration of Trust, as
trust assets; and
WHEREAS, as an incentive for
the Holders to purchase Preferred Securities, the Guarantor irrevocably and
unconditionally agrees, to the extent set forth herein, to pay to the Holders of
the Preferred Securities the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth
herein.
NOW, THEREFORE, in
consideration of the purchase of Preferred Securities by each Holder, which
purchase the Guarantor hereby acknowledges shall benefit the Guarantor, the
Guarantor executes and delivers this Guarantee Agreement for the benefit of the
Holders from time to time of the Preferred Securities.
ARTICLE I
DEFINITIONS
Section
1.1 Definitions.
For all
purposes of this Guarantee Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(a) The
terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;
(b) All
other terms used herein that are defined in the Trust Indenture Act (as defined
herein), either directly or by reference therein, have the meanings assigned to
them therein;
(c) The
words “include”, “includes” and “including” shall be deemed to be followed by
the phrase “without limitation”;
(d) All
accounting terms used but not defined herein have the meanings assigned to them
in accordance with United States generally accepted accounting
principles;
(e) Unless
the context otherwise requires, any reference to an “Article” or a “Section”
refers to an Article or a Section, as the case may be, of this Guarantee
Agreement; and
(f) The
words “hereby”, “herein”, “hereof” and “hereunder” and other words of similar
import refer to this Guarantee Agreement as a whole and not to any particular
Article, Section or other subdivision.
“Affiliate” of any specified
Person means any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control”, when used with respect to any
specified Person, means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
“Preferred Securities” shall
have the meaning specified in the first recital of this Guarantee
Agreement.
“Common Securities” means the
securities representing common undivided beneficial interests in the assets of
the Issuer Trust.
“Declaration of Trust” means
the Amended and Restated Declaration of Trust of the Issuer Trust referred to in
the recitals to this Guarantee Agreement, as modified, amended or supplemented
from time to time.
Event of Default” means
(i) a default by the Guarantor in any of its payment obligations under this
Guarantee Agreement or (ii) a default by the Guarantor in any other
obligation hereunder that remains unremedied for 30 days.
“Guarantee Agreement” means
this Guarantee Agreement, as modified, amended or supplemented from time to
time.
“Guarantee Payments” means the
following payments or distributions, without duplication, with respect to the
Preferred Securities, to the extent not paid or made by or on behalf of the
Issuer Trust: (i) any accumulated and unpaid Distributions (as
defined in the Declaration of Trust) required to be paid on the Preferred
Securities, to the extent the Issuer Trust shall have funds on hand available
therefor at such time; (ii) the Redemption Price (as defined in the
Declaration of Trust) with respect to any Preferred Securities called for
redemption by the Issuer Trust, to the extent the Issuer Trust shall have funds
on hand available therefor at such time; and (iii) upon a voluntary or
involuntary termination, winding-up or liquidation of the Issuer Trust, unless
Debentures are distributed to the Holders, the lesser of (a) the
Liquidation Distribution (as defined in the Declaration of Trust) with respect
to the Preferred Securities, to the extent that the Issuer Trust shall have
funds on hand available therefor at such time, and (b) the amount of assets
of the Issuer Trust remaining available for distribution to Holders on
liquidation of the Issuer Trust.
“Guarantee Trustee” means
Wilmington Trust Company, solely in its capacity as Guarantee Trustee and not in
its individual capacity, until a Successor Guarantee Trustee has been appointed
and has accepted such appointment pursuant to the terms of this Guarantee
Agreement, and thereafter means each such Successor Guarantee
Trustee.
“Guarantor” has the meaning
specified in the preamble to this Guarantee Agreement.
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“Holder” means any Holder (as
defined in the Declaration of Trust) of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, “Holder” shall not include the
Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the
Guarantee Trustee.
“Indenture” means the Junior
Subordinated Indenture, dated as of May 22, 2008, between
PrivateBancorp, Inc. and Wilmington Trust Company, as trustee, as the same may
be modified, amended or supplemented from time to time.
“Issuer Trust” has the meaning
specified in the preamble to this Guarantee Agreement.
“List of Holders” has the
meaning specified in Section 2.2(a).
“Majority in Liquidation Amount of
the Preferred Securities” means, except as provided by the Trust
Indenture Act, Preferred Securities representing more than 50% of the aggregate
Liquidation Amount (as defined in the Declaration of Trust) of all Preferred
Securities then Outstanding (as defined in the Declaration of
Trust).
“Officers’ Certificate” means
a certificate signed by the Chairman of the Board of Directors, a Vice Chairman
of the Board of Directors, the Chief Executive Officer, the Chief Financial
Officer, the President or a Vice President, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Guarantor, and
delivered to the Guarantee Trustee. Any Officers’ Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
(a) a
statement by each officer signing the Officers’ Certificate that such officer
has read the covenant or condition and the definitions relating
thereto;
(b) a
brief statement of the nature and scope of the examination or investigation
undertaken by each officer in rendering the Officers’ Certificate;
(c) a
statement that each officer has made such examination or investigation as, in
such officer’s opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a
statement as to whether, in the opinion of each officer, such condition or
covenant has been complied with.
“Person” means a legal person,
including any individual, corporation, estate, partnership, joint venture,
association, joint-stock company, company, limited liability company, trust,
business trust, statutory trust, unincorporated association, or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
“Preferred Securities” has the
meaning specified in the recitals to this Guarantee Agreement.
“Successor Guarantee Trustee”
means a successor Guarantee Trustee possessing the qualifications to act as
Guarantee Trustee under Section 4.1.
“Trust Indenture Act” means
the Trust Indenture Act of 1939 as in force at the date as of which this
Guarantee Agreement was executed; provided, however, that in
the event the Trust Indenture
3
Act of
1939 is amended after such date, “Trust Indenture Act” means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
ARTICLE II
TRUST
INDENTURE ACT
Section
2.1 Trust Indenture Act;
Application.
(a) This
Guarantee Agreement is subject to the provisions of the Trust Indenture Act that
are required to be part of this Guarantee Agreement and shall, to the extent
applicable, be governed by such provisions.
(b) If
and to the extent that any provision of this Guarantee Agreement limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act through the operation of
Section 318(c) thereof, such imposed duties shall control. If
any provision of this Guarantee Agreement modifies or excludes any provision of
the Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Guarantee Agreement as so modified or
to be excluded, as the case may be.
Section
2.2 List of Holders.
(a) The
Guarantor shall furnish or cause to be furnished to the Guarantee Trustee
(a) semiannually, on or before June 30 and December 31 of each year, a
list, in such form as the Guarantee Trustee may reasonably require, of the names
and addresses of the Holders (a “List of
Holders”) as of a date not more than 15 days prior to the delivery
thereof, and (b) at such other times as the Guarantee Trustee may request
in writing, within 30 days after the receipt by the Guarantor of any such
request, a List of Holders as of a date not more than 15 days prior to the time
such list is furnished, in each case to the extent such information is in the
possession or control of the Guarantor and is not identical to a previously
supplied list of Holders or has not otherwise been received by the Guarantee
Trustee in its capacity as such. The Guarantee Trustee may destroy
any List of Holders previously given to it on receipt of a new List of
Holders.
(b) The
Guarantee Trustee shall comply with the requirements of Section 311(a),
Section 311(b) and Section 312(b) of the Trust Indenture
Act.
Section
2.3 Reports by the Guarantee Trustee.
Not later
than June 15 of each year, commencing June 15, 2008, the Guarantee Trustee shall
provide to the Holders such reports, if any, as are required by Section 313
of the Trust Indenture Act in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Guarantee Trustee
shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
Section
2.4 Periodic Reports to the Guarantee
Trustee.
The
Guarantor shall provide to the Guarantee Trustee, the Securities and Exchange
Commission and the Holders such documents, reports and information, if any, as
required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
4
Section
2.5 Evidence of Compliance with Conditions
Precedent.
The
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with such conditions precedent, if any, provided for in this Guarantee Agreement
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an
officer of the Guarantor pursuant to Section 314(c)(1) may be given in the
form of an Officers’ Certificate.
Section
2.6 Events of Default; Waiver.
The
Holders of at least a Majority in Liquidation Amount of the Preferred Securities
may, by vote, on behalf of the Holders of all the Preferred Securities, waive
any past default or Event of Default and its consequences. Upon such
waiver, any such default or Event of Default shall cease to exist, and any
default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Guarantee Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent therefrom.
Section
2.7 Event of Default; Notice.
(a) The
Guarantee Trustee shall, within 90 days after the occurrence of an Event of
Default, transmit by mail, first class postage prepaid, to the Holders, notice
of any such Event of Default known to the Guarantee Trustee, unless such Event
of Default has been cured before the giving of such notice, provided that,
except in the case of a default in the payment of a Guarantee Payment, the
Guarantee Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors of the Guarantee Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders.
(b) The
Guarantee Trustee shall not be deemed to have knowledge of any Event of Default
unless the Guarantee Trustee shall have received written notice, or an officer
of the Guarantee Trustee charged with the administration of this Guarantee
Agreement shall have obtained written notice of such Event of
Default.
Section
2.8 Conflicting
Interests.
The
Declaration of Trust and the Indenture shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture
Act.
ARTICLE III
POWERS,
DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section
3.1 Powers and Duties of the Guarantee
Trustee.
(a) This
Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of
the Holders, and the Guarantee Trustee shall not transfer this Guarantee
Agreement to any Person except to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Guarantee Trustee
hereunder. The right, title and interest of the Guarantee Trustee, as
such, hereunder shall automatically vest in any Successor Guarantee Trustee,
upon acceptance by such Successor Guarantee Trustee of its appointment
hereunder, and such vesting of title shall be effective
5
whether
or not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If
an Event of Default has occurred and is continuing, the Guarantee Trustee shall
enforce this Guarantee Agreement for the benefit of the Holders.
(c) The
Guarantee Trustee, before the occurrence of any Event of Default, and after the
curing of all Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this Guarantee
Agreement, and no implied covenants shall be read into this Guarantee Agreement
against the Guarantee Trustee. If an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6), the Guarantee
Trustee shall exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No
provision of this Guarantee Agreement shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i) Prior
to the occurrence of any Event of Default and after the curing or waiving of all
such Events of Default that may have occurred:
(A) the
duties and obligations of the Guarantee Trustee shall be determined solely by
the express provisions of this Guarantee Agreement (including pursuant to
Section 2.1), and the Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this
Guarantee Agreement; and
(B) in
the absence of bad faith on the part of the Guarantee Trustee, the Guarantee
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Guarantee Trustee and conforming to the requirements of this
Guarantee Agreement; but in the case of any such certificates or opinions that
by any provision hereof or of the Trust Indenture Act are specifically required
to be furnished to the Guarantee Trustee, the Guarantee Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Guarantee Agreement.
(ii) The
Guarantee Trustee shall not be liable for any error of judgment made in good
faith by an officer of the Guarantee Trustee, unless it shall be proved that the
Guarantee Trustee was negligent in ascertaining the pertinent facts upon which
such judgment was made.
(iii) The
Guarantee Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of not less than a Majority in Liquidation Amount of the Preferred
Securities relating to the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee, or exercising any trust or
power conferred upon the Guarantee Trustee under this Guarantee
Agreement.
(iv) No
provision of this Guarantee Agreement shall require the Guarantee Trustee to
expend or risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of its rights or
powers if the Guarantee Trustee shall have reasonable grounds for believing that
the repayment of such funds or liability
6
is not
assured to it under the terms of this Guarantee Agreement or adequate indemnity
against such risk or liability is not reasonably assured to it.
Section
3.2 Certain Rights of Guarantee
Trustee.
(a) Subject
to the provisions of Section 3.1:
(i) The
Guarantee Trustee may rely and shall be fully protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document reasonably believed by it to
be genuine and to have been signed, sent or presented by the proper party or
parties.
(ii) Any
direction or act of the Guarantor contemplated by this Guarantee Agreement shall
be sufficiently evidenced by an Officers’ Certificate unless otherwise
prescribed herein.
(iii) Whenever,
in the administration of this Guarantee Agreement, the Guarantee Trustee shall
deem it desirable that a matter be proved or established before taking,
suffering or omitting to take any action hereunder, the Guarantee Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers’ Certificate which,
upon receipt of such request from the Guarantee Trustee, shall be promptly
delivered by the Guarantor.
(iv) The
Guarantee Trustee may consult with legal counsel, and the written advice or
opinion of such legal counsel with respect to legal matters shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in accordance with such
advice or opinion. Such legal counsel may be legal counsel to the
Guarantor or any of its Affiliates and may be one of its
employees. The Guarantee Trustee shall have the right at any time to
seek instructions concerning the administration of this Guarantee Agreement from
any court of competent jurisdiction.
(v) The
Guarantee Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Guarantee Agreement at the request or direction of
any Holder unless such Holder shall have provided to the Guarantee Trustee such
adequate security and indemnity as would satisfy a reasonable person in the
position of the Guarantee Trustee against the costs, expenses (including
attorneys’ fees and expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable advances as
may be requested by the Guarantee Trustee; provided that nothing contained in this
Section 3.2(a)(v) shall be taken to relieve the Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the rights and
powers vested in it by this Guarantee Agreement.
(vi) The
Guarantee Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Guarantee Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit.
(vii) The
Guarantee Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through its agents or attorneys,
7
and the
Guarantee Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed by it with due care
hereunder.
(viii) Whenever
in the administration of this Guarantee Agreement the Guarantee Trustee shall
deem it desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the Guarantee Trustee
(A) may request instructions from the Holders, (B) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (C) shall be protected in acting in
accordance with such instructions.
(b) No
provision of this Guarantee Agreement shall be deemed to impose any duty or
obligation on the Guarantee Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it in any jurisdiction
in which it shall be illegal, or in which the Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the
Guarantee Trustee shall be construed to be a duty to act in accordance with such
power and authority.
Section
3.3 Compensation; Indemnity; Fees.
The
Guarantor agrees:
(a) to
pay to the Guarantee Trustee from time to time such reasonable compensation for
all services rendered by it hereunder as may be agreed by the Guarantor and the
Guarantee Trustee from time to time (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except
as otherwise expressly provided herein, to reimburse the Guarantee Trustee upon
request for all reasonable expenses, disbursements and advances incurred or made
by the Guarantee Trustee in accordance with any provision of this Guarantee
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or willful misconduct;
and
(c) to
indemnify the Guarantee Trustee and its directors, officers, employees and
agents (collectively with the Guarantee Trustee, the “Indemnitees”) for, and to hold them harmless
against, any loss, liability or expense, including without limitation, damages,
fines, suits, actions, demands, penalties, costs, out-of-pocket or incidental
expenses, reasonable legal fees and expenses and the costs and expenses of
defending or preparing to defend against any claim (collectively, “Losses”), that may be imposed on or incurred
by any Indemnitee for or in respect of the Guarantee Trustee’s
(i) execution and delivery of this Guarantee Agreement,
(ii) compliance or attempted compliance with or reliance upon any
instruction or other direction upon which the Guarantee Trustee is authorized to
rely pursuant to the terms of this Guarantee Agreement and
(iii) performance under this Guarantee Agreement, except in each case to
the extent that the Loss resulted from the Guarantee Trustee’s or such
Indemnitee’s negligence or willful misconduct. The provisions of this
Section shall survive the termination of the Guarantee Agreement and the
resignation or removal of the Guarantee Trustee for any reason. The
Guarantee Trustee will not claim or exact any lien or charge on any Guarantee
Payments as a result of any amount due to it under this Guarantee
Agreement.
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ARTICLE IV
GUARANTEE
TRUSTEE
Section
4.1 Guarantee Trustee; Eligibility.
(a) There
shall at all times be a Guarantee Trustee which shall:
(i) not
be an Affiliate of the Guarantor; and
(ii) be
a Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000, and shall be a
corporation meeting the requirements of Section 310(a) of the Trust
Indenture Act. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of its supervising or
examining authority, then, for the purposes of this Section 4.1 and to the
extent permitted by the Trust Indenture Act, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
(b) If
at any time the Guarantee Trustee shall cease to be eligible to so act under
Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2.
(c) If
the Guarantee Trustee has or shall acquire any “conflicting interest” within the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee
and Guarantor shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
Section
4.2 Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) Subject
to Section 4.2(b), the Guarantee Trustee may be appointed or removed (i) at
any time by the action of the Holders of a Majority in Liquidation Amount of
Preferred Securities delivered to the Guarantee Trustee and (ii) by the
Guarantor (A) for cause or (B) if a Debenture Event of Default (as defined in
the Declaration of Trust) shall have occurred and be continuing at any
time.
(b) The
Guarantee Trustee shall not be removed until a Successor Guarantee Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Guarantee Trustee and delivered to the Guarantor.
(c) The
Guarantee Trustee appointed hereunder shall hold office until a Successor
Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor and the Holders, which
resignation shall not take effect until a Successor Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed by
such Successor Guarantee Trustee and delivered to the Guarantor and the
resigning Guarantee Trustee.
(d) If
no Successor Guarantee Trustee shall have been appointed and accepted
appointment as provided in this Section 4.2 within 60 days after delivery
to the Guarantor and the Holders of an instrument of resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such
9
court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
Section
5.1 Guarantee.
The
Guarantor irrevocably and unconditionally agrees to pay in full to the Holders
the Guarantee Payments (subject to the limitations contained in the definition
of that term) (without duplication of amounts theretofore paid by or on behalf
of the Issuer Trust), as and when due, regardless of any defense, right of
set-off or counterclaim which the Issuer Trust may have or assert, except the
defense of payment. The Guarantor’s obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Issuer Trust to pay such amounts to
the Holders.
Section
5.2 Waiver of Notice and Demand.
The
Guarantor hereby waives notice of acceptance of this Guarantee Agreement and of
any liability to which it applies or may apply, presentment, demand for payment,
any right to require a proceeding first against the Guarantee Trustee, the
Issuer Trust or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
Section
5.3 Obligations Not Affected.
The
obligations, covenants, agreements and duties of the Guarantor under this
Guarantee Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the
release or waiver, by operation of law or otherwise, of the performance or
observance by the Issuer Trust of any express or implied agreement, covenant,
term or condition relating to the Preferred Securities to be performed or
observed by the Issuer Trust;
(b) the
extension of time for the payment by the Issuer Trust of all or any portion of
the Distributions (other than an extension of time for payment of Distributions
that results from the extension of any interest payment period on the Debentures
as provided in the Indenture), Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities;
(c) any
failure, omission, delay or lack of diligence on the part of the Holders to
enforce, assert or exercise any right, privilege, power or remedy conferred on
the Holders pursuant to the terms of the Preferred Securities, or any action on
the part of the Issuer Trust granting indulgence or extension of any
kind;
(d) the
voluntary or involuntary liquidation, dissolution, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Issuer Trust or any of the assets of the Issuer
Trust;
10
(e) any
invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the
settlement or compromise of any obligation guaranteed hereby or hereby incurred;
or
(g) any
other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a guarantor (other than payment of the
underlying obligation), it being the intent of this Section 5.3 that the
obligations of the Guarantor hereunder shall be absolute and unconditional under
any and all circumstances.
There
shall be no obligation of the Holders to give notice to, or obtain the consent
of, the Guarantor with respect to the happening of any of the
foregoing.
Section
5.4 Rights of Holders.
The
Guarantor expressly acknowledges that: (i) this Guarantee
Agreement will be deposited with the Guarantee Trustee to be held for the
benefit of the Holders; (ii) the Guarantee Trustee has the right to enforce
this Guarantee Agreement on behalf of the Holders; (iii) the Holders of a
Majority in Liquidation Amount of the Preferred Securities have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee in respect of this Guarantee Agreement or
exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Guarantee
Agreement without first instituting a legal proceeding against the Guarantee
Trustee, the Issuer Trust or any other Person.
Section
5.5 Guarantee of Payment.
This
Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by
payment of the Guarantee Payments in full (without duplication of amounts
theretofore paid by the Issuer Trust) or upon the distribution of Debentures to
Holders as provided in the Declaration of Trust.
Section
5.6 Subrogation.
The
Guarantor shall be subrogated to all rights (if any) of the Holders against the
Issuer Trust in respect of any amounts paid to the Holders by the Guarantor
under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee
Agreement. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
Section
5.7 Independent Obligations.
The
Guarantor acknowledges that its obligations hereunder are independent of the
obligations of the Issuer Trust with respect to the Preferred Securities and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
11
ARTICLE VI
COVENANTS
AND SUBORDINATION
Section
6.1 Subordination.
The
obligations of the Guarantor under this Guarantee Agreement will constitute
unsecured obligations of the Guarantor and will rank subordinate and junior in
right of payment to all Senior Debt (as defined in the Indenture) of the
Guarantor to the extent and in the manner set forth in the Indenture with
respect to the Debentures, and the provisions of Article XIII of the
Indenture will apply, mutatis mutandis, to the obligations of the
Guarantor hereunder. The obligations of the Guarantor hereunder do
not constitute Senior Debt of the Guarantor.
Section
6.2 Pari Passu Guarantees.
The
obligations of the Guarantor under this Guarantee Agreement shall rank pari passu with the
obligations of the Guarantor under any other security, guarantee or other
agreement that is expressly stated to rank pari passu with the
obligations of the Guarantor under this Guarantee Agreement and which includes
the obligations of the Guarantor under (i) the Indenture, (ii) the Securities,
and (iii) the Expense Agreement (as defined in the Declaration of
Trust).
ARTICLE VII
TERMINATION
Section
7.1 Termination.
This
Guarantee Agreement shall terminate and be of no further force and effect upon
(i) full payment of the Redemption Price (as defined in the Declaration of
Trust) of all Preferred Securities, (ii) the distribution of Debentures to
the Holders in exchange for all of the Preferred Securities or (iii) full
payment of the amounts payable in accordance with Article IX of the
Declaration of Trust upon liquidation of the Issuer
Trust. Notwithstanding the foregoing, this Guarantee Agreement will
continue to be effective or will be reinstated, as the case may be, if at any
time any Holder is required to repay any sums paid with respect to Preferred
Securities or this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
Section
8.1 Successors and Assigns.
All
guarantees and agreements contained in this Guarantee Agreement shall bind the
successors, assigns, receivers, trustees and representatives of the Guarantor
and shall inure to the benefit of the Holders of the Preferred Securities then
outstanding. Except in connection with a consolidation, merger or
sale involving the Guarantor that is permitted under Article VIII of the
Indenture and pursuant to which the successor or assignee agrees in writing to
perform the Guarantor’s obligations hereunder, the Guarantor shall not assign
its obligations hereunder, and any purported assignment other than in accordance
with this provision shall be void.
12
Section
8.2 Amendments.
Except
with respect to any changes that do not adversely affect the rights of the
Holders in any material respect (in which case no consent of the Holders will be
required), this Guarantee Agreement may only be amended with the prior approval
of the Holders of not less than a Majority in Liquidation Amount of the
Preferred Securities. The provisions of Article VI of the
Declaration of Trust concerning meetings of the Holders shall apply to the
giving of such approval.
Section
8.3 Notices.
Any
notice, request or other communication required or permitted to be given
hereunder shall be in writing, duly signed by the party giving such notice, and
delivered, telecopied or mailed by first class mail as follows:
(a) if
given to the Guarantor, to the address or facsimile number set forth below or
such other address or facsimile number as the Guarantor may give notice to the
Guarantee Trustee and the Holders:
00 Xxxx
Xxxxxxx, Xxxxx 000,
Xxxxxxx,
Xxxxxxxx 00000
Facsimile
No.: 312/683-7111
Attention: General
Counsel
(b) if
given to the Guarantee Trustee, at the address or facsimile number set forth
below or such other address or facsimile number as the Guarantee Trustee may
give notice to the Guarantor and the Holders:
Wilmington
Trust Company
Xxxxxx
Square North,
0000
Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx,
Xxxxxxxx 00000
Facsimile
No.: 302/636-4145
Attention:
Corporate Trust Administration
(c) if
given to any Holder, at the address set forth on the books and records of the
Issuer Trust.
All
notices hereunder shall be deemed to have been given when received in person,
telecopied with receipt confirmed, or mailed by first class mail, postage
prepaid, except that if a notice or other document is refused delivery or cannot
be delivered because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered on the date of
such refusal or inability to deliver.
Section
8.4 Benefit.
This
Guarantee Agreement is solely for the benefit of the Holders and is not
separately transferable from the Preferred Securities.
13
Section
8.5 Governing Law.
THIS
GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
Section
8.6 Counterparts.
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
14
IN WITNESS WHEREOF, the
parties hereto have executed this Guarantee Agreement as of the day and year
first above written.
| PRIVATEBANCORP, INC. | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxxxx | |
| Name Xxxxx X. Xxxxxxx | |||
| Title President and Chief Executive Officer | |||
| WILMINGTON TRUST
COMPANY, as Guarantee Trustee |
|||
|
|
By:
|
/s/ Xxxxxxx X. Xxxx | |
| Name Xxxxxxx X. Xxxx | |||
| Title Financial Services Officer | |||
