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EXHIBIT
4.6
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
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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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.
“
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
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.
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
Guar
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