EXHIBIT 10.18
THIRD AMENDMENT
TO
LOAN AND SUBORDINATED DEBENTURE PURCHASE AGREEMENT
BETWEEN
LASALLE BANK NATIONAL ASSOCIATION
AND
PRIVATEBANCORP, INC.
Third
Amendment dated as of December 31, 2007
Second Amendment dated as of April 3, 2007
First Amendment dated as of December 12, 2006
Original Loan Agreement dated as of September 29, 2005
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AMENDMENT PROVISIONS: |
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A. Amendment to
Recital “C” of the 2005 Loan Agreement
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B. Amendment to
Section 1.1 of the 2005 Loan Agreement
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C. Representations
and Warranties
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D.
Conditions
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E. Additional
Terms
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Exhibit A – Form of Amended and Restated Revolving
Note
Exhibit B – Form of Legal Opinion
THIRD AMENDMENT TO LOAN AND SUBORDINATED DEBENTURE PURCHASE
AGREEMENT
This THIRD AMENDMENT TO LOAN AND
SUBORDINATED DEBENTURE PURCHASE AGREEMENT (“ Third
Amendment ”), dated as of December 31, 2007, is
entered into by and between PRIVATEBANCORP, INC., a Delaware
corporation (“ Borrower ”), and LASALLE BANK
NATIONAL ASSOCIATION, a national banking association (“
Lender ”).
R E C I T A L S :
A. The parties hereto have
entered into that certain Loan and Subordinated Debenture Purchase
Agreement, dated as of September 29, 2005, as previously
amended, restated, supplemented or modified from time to time,
including by that certain First Amendment to Loan and Subordinated
Debenture Purchase Agreement dated as of December 12, 2006 and
that certain Second Amendment to Loan and Subordinated Debenture
Purchase Agreement dated as of April 3, 2007 (the “
2005 Loan Agreement ”).
B. The parties hereto desire to
amend and modify the 2005 Loan Agreement in accordance with the
terms and subject to the conditions set forth in this Third
Amendment. As amended and modified by this Third Amendment, the
2005 Loan Agreement may be referred to as the “
Agreement .”
C. The parties desire to amend
the terms of the 2005 Loan Agreement to (i) decrease the
Revolving Loan Amount, (ii) extend the Revolving Loan Maturity
Date, and (iii) otherwise modify the Agreement as set forth
herein. The parties agree to undertake such modifications, and the
other modifications described in this Third Amendment, in
accordance with the terms, subject to the conditions, and in
reliance upon the recitals, representations, warranties and
covenants set forth herein, in the Agreement, and in the other Loan
Documents, irrespective of whether entered into or delivered on or
after September 29, 2005.
D. Capitalized terms used but
not otherwise defined in this Third Amendment shall have the
meanings respectively ascribed to them in the 2005 Loan
Agreement.
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 hereby agree as follows:
A
G R E E M E N T :
A. Amendment to
Recital “C” of the 2005 Loan Agreement .
Recital “C” to the 2005 Loan Agreement is hereby
deleted and replaced in its entirety with the following:
“C. Borrower has requested that
Lender provide it with three credit facilities in the aggregate
principal amount of $100,000,000 consisting of (a) a term loan
(the “ Term Loan ”) in the principal amount of
$250,000 (the “ Term Loan Amount ”), (b) a
revolving line-of-credit (the “ Revolving Loan
”) in the principal amount of up to $24,750,000
(the “ Revolving Loan Amount ”), and
(c) subordinated debt (the “ Subordinated
Debt ”) in the principal amount of up to $75,000,000
(“ Subordinated Debt Amount ”). The Term Loan
and the Revolving Loan may be referred to collectively as the
“ Senior Loans ” and the Senior Loans and the
Subordinated Debt may be referred to collectively as the “
Loans .””
B. Amendment to
Section 1.1 of the 2005 Loan Agreement .
The
term “Revolving Loan Maturity Date” is hereby deleted
from Section 1.1 of the 2005 Loan Agreement and
replaced in its entirety with the following:
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“”
Revolving Loan Maturity Date ” means December 31,
2008.”
C.
Representations and Warranties . The Borrower hereby
represents and warrants to the Lender as follows:
(i) Except as provided in that
certain default waiver letter, dated as of
January 22, 2008, by and between Lender and Borrower, no
Event of Default or Potential Event of Default has occurred and is
continuing (or would result from the amendments contemplated
hereby).
(ii) The execution, delivery and
performance by Borrower of this Third Amendment have been duly
authorized by all necessary corporate and other action and do not
and will not require any registration with, consent or approval of,
or notice to or action by any Person (including any Governmental
Agency) in order to be effective and enforceable.
(iii) This Third Amendment and the
other Loan Documents (as amended by this Third Amendment)
constitute the legal, valid and binding obligations of Borrower,
enforceable against the Borrower in accordance with their
respective terms.
(iv) All representations and
warranties of Borrower in the 2005 Loan Agreement (as modified by
this Third Amendment) are true and correct, except, for the
purposes of this Third Amendment only, all references in
Section 4.4 of the 2005 Loan Agreement to (x) the
term “Financial Statements” shall be deemed to refer to
“the consolidated financial statements as of and for the year
ending December, 31, 2006, and as of and for the nine months ending
September 30, 2007, audited in the case of Borrower’s
year end financial statements by the Borrower’s certified
public accountants.”
(v) Borrower’s obligations
under the Agreement and under the other Loan Documents are not
subject to any defense, counterclaim, set-off, right to recoupment,
abatement or other claim.
D.
Conditions . Notwithstanding anything to the contrary
contained elsewhere in the Agreement, the obligation of Lender to
extend the Revolving Loan Maturity Date, decrease the Revolving
Loan Amount and agree to the other modifications contemplated by
this Third Amendment, shall be subject to the performance by
Borrower prior to the date on which this Third Amendment is
executed (the “ Amendment Closing Date ”) of all
of its agreements theretofore to be performed under the Agreement
and to the satisfaction of the following conditions precedent. The
obligations to continue to make disbursements of proceeds under the
Loans are, and shall remain, subject to the conditions precedent in
the 2005 Loan Agreement and to the receipt by Lender of all the
following in form and substance satisfactory to Lender and its
counsel, and, where appropriate, duly executed and dated the
Amendment Closing Date:
(i) an amended and restated Revolving
Note, substantially in the form of Exhibit A attached
hereto;
(ii) a certificate of good standing
of Borrower, certified by the appropriate governmental official in
its jurisdiction of incorporation and dated within the five
business days preceding the date hereof;
(iii) (a) copies, certified by
the Secretary or Assistant Secretary of Borrower, of the
(I) resolutions duly adopted by the board of directors of
Borrower (or the appropriate committee thereof) authorizing the
execution, delivery and performance of this Third Amendment and the
other documents to be delivered by Borrower pursuant to this Third
Amendment (including the Third Amendment, the
“Amendment-Related Documents”), and (II) the
Bylaws of Borrower as currently in effect; and (b) a
certification by the Secretary or Assistant Secretary of Borrower
that there has been no amendment to the articles of incorporation
of Borrower from and after
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September 29, 2005, and that the articles of incorporation
delivered by Borrower to the Lender on September 29, 2005,
remain in full force and effect;
(iv) a written opinion of Vedder
Price P.C., counsel to the Borrower, addressed to the Lender,
substantially in the form of Exhibit B attached hereto;
and
(v) such other documents, agreements
or instruments as Lender may reasonably request.
E. Additional
Terms .
(i)
Acknowledgment of Indebtedness under Agreement . The
Borrower acknowledges and confirms that, as of the date hereof, the
Borrower is indebted to the Lender, without defense, setoff, or
counterclaim, in the aggregate principal amount of (i) Two
Hundred Fifty Thousand and No/100 Dollars ($250,000) under the Term
Loan, (ii) Zero Dollars ($0) under the Revolving Loan and
(iii) Seventy-Five Million and No/100 Dollars ($75,000,000)
under the Subordinated Debt.
(ii)
The Agreement . All references in the 2005 Loan Agree
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