SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT AND LIMITED WAIVER
THIS SECOND
AMENDMENT TO REVOLVING CREDIT AGREEMENT AND LIMITED WAIVER dated as
of February 13, 2009 (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, as amended by that certain First Amendment
to Revolving Credit Agreement dated as of December 5, 2008 (as
so amended, and as may be further amended, supplemented or
otherwise modified from time to time, the “ Credit
Agreement ”);
WHEREAS, for the
Fiscal Quarter ending December 31, 2008, (a) the
Borrower’s Allowance for Loan and Lease Losses was less than
75% of its Nonperforming Assets in violation of Section 6.1 of
the Credit Agreement (the “ Loan Loss Reserve Coverage
Default ”), (b) the Borrower’s Nonperforming
Assets was greater than 1.75% of the sum of (i) Total Loans
plus (ii) Other Real Estate Owned in violation of
Section 6.3 of the Credit Agreement (the “ OREO
Default ”) and (c) The Borrower’s Double
Leverage Ratio was greater than 1.50 to 1.00 in violation of
Section 6.4 of the Credit Agreement (together with the Loan
Loss Reserve Coverage Default and the OREO Default, the “
Specified Defaults ”); and
WHEREAS, the
Borrower has requested that the Administrative Agent and the
Lenders waive the Specified Defaults and amend certain provisions
of 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 amended by deleting Section 2.7(a)(ii) in
its entirety and substituting in lieu thereof the
following:
“(ii) on
each Eurodollar Loan, at LIBOR for the applicable Interest Period
in effect for such Eurodollar Loan, plus 2.00% per
annum.”
(b) The
Credit Agreement is further amended by deleting the first sentence
of Section 2.8 in its entirety and substituting in lieu
thereof the following:
“The
Borrower agrees to pay to the Administrative Agent for the account
of each Lender a facility fee, which shall accrue at 0.50% per
annum on the daily amount of the Revolving Commitment (whether used
or unused) of such Lender during the Availability Period; provided,
that if such Lender continues to have any Revolving Loans after the
Commitment Termination Date, then the facility fee shall continue
to accrue on the daily amount of such Revolving Loans from and
after the Commitment Termination Date to the date that all of such
Lender’s Revolving Loans have been paid in
full.”
(c) The
Credit Agreement is further amended by deleting Section 5.1(i)
in its entirety and substituting in lieu thereof the
following:
“(i)
promptly after delivery thereof by the Borrower or any Subsidiary,
all reports, certificates and other data required pursuant to the
FDIC Guarantee Program.”
(d) The
Credit Agreement is further amended by deleting Section 6.1 in
its entirety and substituting in lieu thereof the
following:
“Section 6.1. Loan Loss Reserve Coverage .
The Borrower on a consolidated basis will not permit at the end of
each Fiscal Quarter its Allowance for Loan and Lease Losses to be
less than 60% of its Nonperforming Assets.”
(e) The
Credit Agreement is further amended by deleting Section 6.3 in
its entirety and substituting in lieu thereof the
following:
“
Section 6.3. Ratio of Nonperforming Assets to Total
Loans and OREO . The Borrower on a consolidated basis will
not permit at the end of each Fiscal Quarter Nonperforming Assets
to be greater than 2.50% of the sum of Total Loans (excluding loans
held for sale and determined by reference to the Borrower’s
Form 10-Q or 10-K) and Other Real Estate Owned.”
(f) The
Credit Agreement is further amended by deleting Section 7.1(j)
in its entirety and substituting in lieu thereof the
following:
“(j)
unsecured Indebtedness of a Financial Institution Subsidiary in an
aggregate amount outstanding at any time not to exceed, taken
together with all other unsecured Indebtedness of other Financial
Institution Subsidiaries permitted pursuant to this clause (j), the
lesser of (i) $200,000,000 and (ii) the aggregate amount of
the debt guarantee limit pursuant to 12 C.F.R.
Section 370.3(b) of each Financial Institution Subsidiary that
is participating in the FDIC Guarantee Program, so long as, in each
case: (v) such Indebtedness qualifies as
“FDIC-guaranteed debt” pursuant
-2-
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 such
Financial Institution Subsidiary’s participation in the FDIC
Guarantee Program under 12 C.F.R.
Section 370.3(e)(3).”
(g) The
Credit Agreement is further amended by deleting Section 7.9 in
its entirety and substituting in lieu thereof the
following:
“
Section 7.9. FDIC Guarantee Program Participation
. So long as any Financial Institution Subsidiary has
Indebtedness outstanding under Section 7.1(j), no such
Financial Institution Subsidiary shall opt out of the FDIC
Guarantee Program.”
For the avoidance
of doubt, the increase in (i) the interest rate contemplated
by clause (a) o
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