FIRST AMENDMENT TO REVOLVING
CREDIT AGREEMENT
THIS FIRST
AMENDMENT TO REVOLVING CREDIT AGREEMENT dated as of
December 5, 2008 (this “ Amendment ”), by
and among PRIVATEBANCORP, INC. a Delaware corporation (the “
Borrower ”), each of the financial institutions party
hereto as “Lenders” and SUNTRUST BANK, in its capacity
as Administrative Agent (in such capacity, the “
Administrative Agent ”).
WHEREAS, the
Borrower, the Lenders and the Administrative Agent are parties to
that certain Revolving Credit Agreement dated as of
September 26, 2008 (the “ Credit Agreement
”);
WHEREAS, the
Borrower desires to issue up to $200,000,000 of senior unsecured
debt guaranteed by the Federal Deposit Insurance Corporation (the
“ FDIC ”) pursuant to the FDIC’s temporary
liquidity guarantee program established pursuant to 12 C.F.R.
Part 370; and
WHEREAS, in order
to facilitate the foregoing, the Borrower, the Lenders and the
Administrative Agent desire to amend the Credit Agreement on the
terms and conditions hereof.
NOW, THEREFORE,
for and in consideration of the above premises and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, the Lenders, the
Administrative Agent and the Borrower hereby agree as
follows:
1.
Defined Terms . Capitalized terms which are used herein
without definition and which are defined in the Credit Agreement
shall have the same meanings herein as in the Credit
Agreement.
(a) The
Credit Agreement is hereby amended by inserting the following
defined terms into Section 1.1 in appropriate alphabetical
order:
“
FDIC ” shall mean the Federal Deposit Insurance
Corporation.
“ FDIC
Guarantee Program ” shall mean the FDIC’s
temporary liquidity guarantee program established pursuant to 12
C.F.R. Part 370.
(b) The
Credit Agreement is hereby further amended by deleting the
definition of “Base Rate” in Section 1.1 and
inserting in lieu thereof the following:
“ Base
Rate ” shall mean the highest of (i) the per
annum rate which the Administrative Agent publicly announces from
time to time to be its prime lending rate, as in effect from time
to time, (ii) the Federal Funds Rate, as in effect from time
to time, plus one-half of one percent (0.50%) or (iii) the sum
of (x) LIBOR for an
Interest Period
of one month, which shall be determined on each Business Day, plus
(y) the excess of 1.25% over the Base Rate Margin. The
Administrative Agent’s prime lending rate is a reference rate
and does not necessarily represent the lowest or best rate charged
to customers. The Administrative Agent may make commercial loans or
other loans at rates of interest at, above or below the
Administrative Agent’s prime lending rate. Each change in the
Administrative Agent’s prime lending rate shall be effective
from and including the date such change is publicly announced as
being effective.
(c) The
Credit Agreement is further amended by deleting the “.”
at the end of Section 5.1(h) and inserting in its place
“; and” and inserting the following new clause
(i) into Section 5.1 immediately following
Section 5.1(h):
“(i)
promptly after delivery thereof, all reports, certificates and
other data required pursuant to the FDIC Guarantee
Program.”
(d) The
Credit Agreement is hereby further amended by deleting the
“.” at the end of Section 7.1(i) and inserting in its
place “; and” and inserting the following new clause
(j) into Section 7.1 immediately following
Section 7.1(i):
“(j)
unsecured Indebtedness of the Borrower in an aggregate amount
outstanding at any time not to exceed the lesser of (i)
$200,000,000 and (ii) the Borrower’s debt guarantee
limit pursuant to 12 C.F.R. Section 370.3(b), so long as
(v) such Indebtedness qualifies as “FDIC-guaranteed
debt” pursuant to 12 C.F.R. Section 370.2(i), (w) such
Indebtedness has not otherwise been disqualified pursuant to 12
C.F.R. Section 370.2(i), (x) such Indebtedness has been
guaranteed by the FDIC pursuant to the FDIC Guarantee Program,
(y) the maturity date of such Indebtedness does not extend
beyond June 30, 2012, as such date may be extended by the FDIC
pursuant to the FDIC Guarantee Program or otherwise and
(z) the FDIC has not terminated the Borrower’s
participation in the FDIC Guarantee Program under 12 C.F.R.
Section 370.3(e)(3).”
(e) The
Credit Agreement is hereby further amended by inserting the
following new Section 7.9 into Article VII:
“
Section 7.9. FDIC Guarantee Program
Participation . So long as the Borrower has any
Indebtedness outstanding under Section 7.1(j), the Borrower
will not opt out of the FDIC Guarantee Program.”
3.
FDIC as Governmental Authority . For the avoidance of
doubt, the definition of “Governmental Authority” set
forth in Section 1.1 of the Credit Agreement shall, for all
purposes, be deemed to include the FDIC for so long as the FDIC has
any regulatory authority over the Borrower.
4.
Conditions Precedent to Effectiveness . The
effectiveness of this Amendment is subject to the truth and
accuracy of the representations set forth in Sections 5 and 6
below and receipt by the Administrative Agent of the following,
each of which shall be in form and substance
-2-
satisfactory to
Administrative Agent:
(a) This
Amendment, duly executed and delivered by the Borrower, the
Required Lenders and the Administrative Agent;
|
