exv10w7



 





Wintrust Financial Corporation

Form 10-K, Exhibit 10.7



SECOND AMENDED AND RESTATED LOAN AGREEMENT




     This
SECOND AMENDED AND RESTATED LOAN AGREEMENT (the “Agreement”), dated
as of April 30, 2003, is entered into between WINTRUST FINANCIAL CORPORATION,
an Illinois corporation (the “Borrower”), and LASALLE BANK NATIONAL
ASSOCIATION, a national banking association (“LaSalle”).



RECITALS:



     WHEREAS, the Borrower and LaSalle are parties to that certain Amended and
Restated Loan Agreement dated as of October 29, 2002, and the Borrower desires
to restructure its financing by reducing the existing $50,000,000 loan to
$25,000,000 and by extending its maturity date to May 1, 2004, and by borrowing
an additional $1,000,000, and the parties hereto agree that it would be in the
best interests of the parties hereto to amend and restate its borrowing and
lending arrangement;



     WHEREAS, the $25,000,000 Revolving Note dated October 29, 2002, maturing
February 27, 2006, executed by Borrower in favor of Lender shall remain in full
force and effect, but shall be subject to the terms of this Agreement;



     WHEREAS, Borrower will continue to pledge to LaSalle and grant a security
interest in favor of LaSalle with respect to the capital stock of Hinsdale Bank
& Trust (“Hinsdale”), Lake Forest Bank & Trust Company (“Lake Forest”), North
Shore Community Bank & Trust Company (“North Shore”), Libertyville Bank & Trust
Company (“Libertyville”), Crystal Lake Bank and Trust Company (“Crystal Lake”),
Northbrook Bank and Trust Company (“Northbrook”) and Barrington Bank and Trust
Company (“Barrington”) (Hinsdale, Lake Forest, North Shore, Libertyville,
Crystal Lake, Northbrook and Barrington are referred to herein individually as
a “Subsidiary” and collectively, the “Subsidiaries”; the capital stock of such
Subsidiaries shall be collectively referred to herein as the “Subsidiary
Stock”) as set forth in the Amended and Restated Pledge and Security Agreement
of the Borrower of even date herewith (the “Pledge Agreement”);



     WHEREAS, the Subsidiary Stock continues to constitute 100% of the issued
and outstanding capital stock of the Subsidiaries; and



     WHEREAS, LaSalle is willing to make loans to the Borrower in accordance
with the terms, subject to the conditions and in reliance upon the
representations, warranties and covenants set forth herein and in the other
documents and instruments entered into or delivered in connection with or
relating to the loan contemplated in this 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:



 









 





AGREEMENT:




     1. Commitment of LaSalle.



     LaSalle agrees to extend, or continue to extend, loans (each a “Loan” and
collectively the “Loans”) to the Borrower in the principal amount of ONE
MILLION DOLLARS ($1,000,000), evidenced by a promissory note (the “Note 1”), an
existing loan to the Borrower in the principal amount of TWENTY FIVE MILLION
DOLLARS ($25,000,000) maturing February 27, 2006, evidenced by a promissory
note (the “Note 2”), and a loan to the Borrower in the principal amount of
TWENTY FIVE MILLION DOLLARS ($25,000,000), evidenced by a promissory note (the
“Note 3”) (Note 1, Note 2 and Note 3 are hereafter collectively referred to as
the “Notes”), each secured by the Pledge Agreement, in accordance with terms
and subject to the conditions set forth in this Agreement, the Notes and the
Pledge Agreement.



     2. Conditions of Borrowing.



     Notwithstanding any other provision of this Agreement, LaSalle shall not
be required to extend the Loans;



          (a) if, since the date of this Agreement and up to the agreed upon date of
the Loans, there has occurred, in LaSalle’s sole and complete discretion, a
material adverse change in the financial condition or affairs of the Borrower
or any Subsidiary;



          (b) if any Default (as such term is defined below) has occurred or any
event which, with the giving of notice or lapse of time, or both, would
constitute such a Default;



          (c) if any litigation or governmental proceeding has been instituted or
threatened against the Borrower, any Subsidiary or any of their respective
officers or shareholders which, in the sole discretion of LaSalle, could
materially adversely affect the financial condition or operations of the
Borrower or such Subsidiary;



          (d) if all necessary or appropriate actions and proceedings shall not have
been taken in connection with, or relating to the transactions contemplated
hereby and all documents incident thereto shall not have been completed and
tendered for delivery, in form and substance satisfactory to LaSalle;



          (e) if the Borrower shall not have tendered for delivery the Notes and the
Pledge Agreement, together with all of the Pledged Security (as such term is
defined in the Pledge Agreement) all in form and substance satisfactory to
LaSalle;



          (f) if the Borrower shall not have tendered for delivery an Amended and
Restated Collateral Safekeeping Agreement, all in form and substance
satisfactory to LaSalle;



          (g) if the Borrower shall not have tendered for delivery a legal opinion,
if requested, from the Borrower’s counsel in form and substance satisfactory to
LaSalle and LaSalle’s legal counsel; or



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          (h) if LaSalle shall not have received, in form and substance satisfactory
to LaSalle, all certificates, affidavits, schedules, resolutions, opinions,
notes and other documents which are provided for hereunder, or which it may
reasonably request.



     3. Notes Evidencing Borrowing.



     The Loans shall be evidenced by Note 1 executed by the Borrower in the
principal amount of ONE MILLION DOLLARS ($1,000,000), by Note 2 previously
executed by Borrower in the principal amount of TWENTY FIVE MILLION DOLLARS
($25,000,000), and by Note 3 executed by Borrower in the principal amount of
TWENTY FIVE MILLION DOLLARS ($25,000,000), which Notes shall be, or are, in the
form set forth as Exhibit A, Exhibit B and Exhibit C hereto, respectively.



          (a) Interest on amounts outstanding under the Notes shall be payable
quarterly, in arrears, commencing on May 29, 2002, and continuing on each May
29, August 29, November 29, February 28, and May 29 thereafter. Interest shall
be also payable at maturity, after maturity on demand, and on the date any
principal payment hereon is paid.



          (b) A final payment of all outstanding amounts due under Note 1,
including, but not limited to principal, interest and any amounts owing under
Subsection 10(m) of this Agreement, if not payable earlier, shall be due and
payable on May 1, 2013.



          (c) A final payment of all outstanding amounts due under Note 2,
including, but not limited to principal, interest and any amounts owing under
Subsection 10(m) of this Agreement, if not payable earlier, shall be due and
payable on February 27, 2006.



          (d) A final payment of all outstanding amounts due under Note 3, including
but not limited to principal, interest and any amounts owing under Subsection
10(m) of this Agreement, if not payable earlier, shall be due and payable on
May 1, 2004.



          (e) The amounts outstanding under the Notes from time to time shall bear
interest calculated on the actual number of days elapsed on the basis of a 360
day year, at a rate equal, at the Borrower’s option, to either (a) the London
Inter-Bank offered Rate (“LIBOR”) plus 140 basis points, or (b) the Prime Rate
(whichever rate is so selected, the “Interest Rate”).



     For purposes of this Agreement, the term “Prime Rate” shall mean the
floating prime rate in effect from time to time as set by LaSalle, and referred
to by LaSalle as its Prime Rate. The Borrower acknowledges that the Prime Rate
is not necessarily LaSalle’s lowest or most favorable rate of interest at any
one time. The effective date of any change in the Prime Rate shall for
purposes hereof be the date the rate change is publicly announced by LaSalle.



     For purposes of this Agreement, “LIBOR” shall mean the per annum rate of
interest at which U.S. dollar deposits in an amount comparable to the amount of
the relevant LIBOR Loan and for a period equal to the relevant “Interest
Period” (hereinafter defined) are offered generally to LaSalle in the London
Interbank Eurodollar market which are published by Bloomberg Financial Markets
systems (or other comparable nominated vendor of the British Bankers
Association LIBOR Rate) at approximately 11:30 a.m. (London time) one banking
day prior to the commencement of each Interest Period, such rate to remain
fixed for such Interest Period.



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     “Interest Period” shall mean successive three month periods as selected
from time to time by the Borrower by notice given to LaSalle not less than
three banking days prior to the first day of each respective interest Period;
provided that: (i) each such three month period occurring after such initial
period shall commence on the day on which the next preceding period expires;
and (ii) the final Interest Period shall be such that its expiration occurs on
or before the stated maturity date hereof. The Borrower hereby further
promises to pay to the order of LaSalle, on demand, interest on the unpaid
principal amount hereof after maturity (whether by acceleration or otherwise)
at a rate of two per cent per annum in excess of the Prime Rate in effect at
the time of maturity.



     LaSalle’s determination of LIBOR as provided above shall be conclusive,
absent manifest error. Furthermore, if LaSalle determines, in good faith
(which determination shall be conclusive, absent manifest error), prior to the
commencement of any Interest Period, that (a) U.S. dollar deposits of
sufficient amount and maturity for funding any LIBOR Loan are not available to
LaSalle in the London Interbank Eurodollar market in the ordinary course of
business, or (b) by reason of circumstances affecting the London Interbank
Eurodollar market, adequate and fair means do not exist for ascertaining the
rate of interest to be applicable to the relevant LIBOR Loan, LaSalle shall
promptly notify the Borrower and such LIBOR Loan shall be immediately due and
payable on the last banking day of the then existing interest Period, without
further demand, presentment, protest or notice of any kind, all of which are
hereby waived by the Borrower.



     If, after the date hereof, the introduction of, or any change in any
applicable law, treaty, rule, regulation or guideline or in the interpretation
or administration thereof by any governmental authority or any central bank or
other fiscal, monetary or other authority having jurisdiction over LaSalle or
its lending office (a “Regulatory Change”), shall, in the opinion of counsel to
LaSalle, makes it unlawful for LaSalle to make or maintain any LIBOR Loan
evidenced hereby, then LaSalle shall promptly notify the Borrower and such
LIBOR Loan shall be immediately due and payable on the last banking day of the
then existing Interest Period or on such earlier date as required by law, all
without further demand, presentment, protest or notice of any kind, all of
which are hereby waived by the Borrower.



     If, for any reason, any LIBOR Loan is paid prior to the last banking day
of its then-current interest Period, the Borrower agrees to indemnify LaSalle
against any loss (including any loss on redeployment of the funds repaid), cost
or expense incurred by LaSalle as a result of such prepayment.



     If any Regulatory Change (whether or not having the force of law) shall
(a) impose, modify or deem applicable any assessment, reserve, special deposit
or similar requirement against assets held by, or deposits in or for the
account of or loans by, or any other acquisition of funds or disbursements by,
LaSalle; (b) subject LaSalle or any LIBOR Loan to any tax, duty, charge, stamp
tax or fee or change the basis of taxation of payments to LaSalle of principal
or interest due from the Borrower to LaSalle hereunder (other than a change in
the taxation of the overall net income of LaSalle); or (c) impose on LaSalle
any other condition regarding such LIBOR Loan or LaSalle’s funding thereof, and
LaSalle shall determine (which determination shall he conclusive, absent
manifest error) that the result of the foregoing is to increase the cost to
LaSalle of making or maintaining such LIBOR Loan or to reduce the amount of
principal or



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interest received by LaSalle hereunder, then the Borrower shall pay to
LaSalle, on demand, such additional amounts as LaSalle shall, from time to
time, determine are sufficient to compensate and indemnify LaSalle for such
increased cost or reduced amount.



          (f) Any amount of principal or interest on the Note which is not paid when
due, whether at stated maturity, by acceleration or otherwise shall bear
interest payable on demand at an interest rate equal at all times to two
percent (2%) above the Prime Rate.



          (g) Each Loan shall be made available to the Borrower upon its written or
verbal request, from any person whose authority to so act has not been revoked
by the Borrower in writing previously received by LaSalle. Such request must
be received by no later than 11:00 a.m. Chicago, Illinois time, on the day it
is to be funded. The proceeds of each Loan shall be made available at the
office of LaSalle by credit to the account of the Borrower or by other means
requested by the Borrower and acceptable to LaSalle. LaSalle is authorized to
rely on the telephonic, telecopy or telegraphic loan requests which LaSalle
believes in its good faith judgment to emanate from a properly authorized
representative of the Borrower, whether or not that is in fact the case. The
Borrower does hereby irrevocably confirm, ratify and approve all such advances
by LaSalle and does hereby indemnify LaSalle against losses and expenses
(including court costs, attorneys’ and paralegals’ fees) and shall hold LaSalle
harmless with respect thereto.



          (h) If any payment to be made by the Borrower hereunder shall become due
on a Saturday, Sunday or bank holiday under the laws of the State of Illinois,
such payment shall be made on the next succeeding business day and such
extension of time shall be included in computing any interest in respect of
such payment.



     4. Principal Payments and Prepayments.



          (a) Borrower hereby agrees that LaSalle shall have the exclusive right, in
its sole discretion to determine the application of all payments received from
the Borrower. Unless LaSalle elects otherwise, LaSalle shall apply such
payments in the following order; (i) expenses under the Agreement; (ii) accrued
interest under Note 2 and Note 3, prorata; (iii) accrued interest under any
subordinated notes or debentures issued by the Borrower and owned by LaSalle;
(iv) accrued interest under Note 1; (v) principal amounts outstanding under
Note 2 and Note 3, prorata; (vi) principal amounts outstanding under any
subordinated note or debenture issued by Borrower and owned by LaSalle; (vii)
principal amounts outstanding under Note 1; provided, however, subject to
certain applicable rules, regulations or limitations which govern the repayment
of subordinated indebtedness by a bank holding company subsequent to an event
of default, LaSalle is authorized to apply any payments it receives in such
order, combination and amount as LaSalle, in its sole and absolute discretion,
may determine.



          (b) Prepayments of Prime Rate Loans relating to Note 2 and Note 3 are
permitted at any time, and shall be applied to the next succeeding principal
payment due. Any prepayments of LIBOR Loans relating to Note 2 and Note 3
shall be subject to the terms of Section 3(c) and Section 3(d), above, as
applicable. Prepayment of Note 1 is not permitted unless subordinated notes or
debentures issued by the Borrower and owned by LaSalle have been paid in full
and shall also be subject to the terms of Section 3(b), above.



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     5. Representations and Warranties.



     To induce LaSalle to make the Loan provided for herein, the Borrower
represents and warrants as follows:



          (a) The Borrower: (i) is a corporation duly organized and validly
existing and in good standing under the laws of the State of Illinois; (ii) is
duly qualified as a foreign corporation and is in good standing in all states
in which it is doing business except where the failure to so qualify would not
have a material adverse effect on the Borrower or its business, and (iii) has
all requisite power and authority, corporate or otherwise, to own, operate and
lease its properties and to carry on its business as now being conducted. Each
Subsidiary is an Illinois banking corporation or a national banking
association, and has all requisite power and authority, corporate or otherwise,
to own, operate and lease its property and to carry on its business as now
being conducted. The Borrower and the Subsidiaries have made payment of all
franchise and similar taxes in the State of Illinois and in all of the
respective jurisdictions in which they are incorporated or qualified, insofar
as such taxes are due and payable at the date of this Agreement, except for any
such taxes the validity of which is being contested in good faith and for which
proper reserves have been set aside on the books of the Borrower or such
Subsidiary, as the case may be.



          (b) The Borrower is the owner of 100% of the issued and outstanding
capital stock of each of the Subsidiaries.



          (c) The Subsidiary stock has been duly authorized, legally and validly
issued, fully paid and nonassessable, and is owned by the Borrower free and
clear of all pledges liens, security interests, charges or encumbrances,
except, upon consummation of the transactions contemplated herein, for the
security interest granted by the Borrower to LaSalle. There are, as of the
date hereof, no outstanding options, rights or warrants obligating Borrower to
issue, deliver or sell, or cause to be issued, delivered or sold, additional
shares of the capital stock of any Subsidiary or obligating Borrower to grant,
extend or enter into any such agreement or commitment, except for such
agreements or commitments existing as of the date of this Agreement and
disclosed to LaSalle.



          (d) The financial statements of:




               (i) the Borrower, all of which have heretofore been furnished to
LaSalle, have been prepared in accordance with generally accepted
accounting principles consistently applied (“GAAP”) and maintained by the
Borrower throughout the periods involved, and fairly present the
financial condition of the Borrower individually and on a consolidated
basis at such dates specified therein and the results of its operations
for the periods then ended; and




               (ii) each Subsidiary, all of which have heretofore been furnished to
LaSalle, to the best knowledge of the Borrower have been prepared in
accordance with GAAP and maintained by such Subsidiary throughout the
periods involved, and fairly present the financial condition of such
Subsidiary at such dates specified therein and the results of its
operations for the periods then entered.



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          (e) To the best knowledge of the Borrower, since the latest date of the
financial statements referred to in Section 5(d) above, there have been no
material changes in the assets, liabilities, or condition, financial or
otherwise, of the Borrower or any Subsidiary other than changes arising from
transactions in the ordinary course of business, and no such changes have been
materially adverse, whether in the ordinary course of business or otherwise.
To the best knowledge of the Borrower, neither the business nor the properties
of the Borrower or any Subsidiary have been materially and adversely affected
in any way, including, without limitation, as a result of any fire, explosion,
accident, strike, lockout, labor dispute, flood, drought, embargo, imposition
of governmental restrictions, confiscation by a governmental agency or acts of
God.



          (f) There are no actions, suits, proceedings or written agreements
pending, nor to the best of the knowledge of the Borrower threatened or
proposed, against the Borrower or, to the best knowledge of the Borrower, any
Subsidiary, at law or in equity or before or by any federal, state, municipal
or other governmental department, commission, board or other administrative
agency, domestic or foreign, which are of a material nature. Neither of the
Borrower nor, to the best knowledge of the Borrower, any Subsidiary is in
default with respect to any order, writ, injunction or decree of, or any
written agreement with, any court, commission, board or agency, domestic or
foreign.



          (g) all tax returns and reports of the Borrower and, to the best knowledge
of the Borrower, each Subsidiary, required by law to be filed have been duly
filed, and all taxes, assessments, fees and other governmental charges upon the
Borrower and the Subsidiaries or upon any of their properties or assets which
are due and payable have been paid, and the Borrower knows of no additional
assessment of a material nature against the Borrower or the Subsidiaries for
taxes, or, except as disclosed on the financial statements referred to in
Section 5(d) above, of any basis for any such additional assessment.



          (h) The Borrower’s primary business is that of a financial holding
company. All necessary regulatory approvals have been obtained for the
Borrower to conduct its business.



          (i) The deposit accounts of the Subsidiaries are insured by the Federal
Deposit Insurance Corporation (“FDIC”).



          (j) None of the Pledged Security (as defined in the Pledge Agreement)
constitutes margin stock, as defined in Regulation U of the Board of Governors
of the Federal Reserve system (“FRS”).



     The foregoing representations and warranties shall survive the making of
this Agreement, and execution and delivery of the Notes and the Pledge
Agreement, and shall be deemed to be continuing representations and warranties
until such time as the Borrower has satisfied all of its obligations to
LaSalle; including, but not limited to the obligation to pay in full all
principal, interest and other amounts in accordance with the terms of this
Agreement, the Notes and the Pledge Agreement.



     6. Negative Covenants



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     The Borrower agrees that until the Borrower satisfies all of its
obligations to LaSalle, including, but not limited to its obligations to pay in
full all principal, interest and other amounts owing in accordance with the
terms of this Agreement, the Notes and the Pledge Agreement, the Borrower shall
not, nor shall the Borrower cause, permit or allow any Subsidiary to:



          (a) create, assume, incur, have outstanding, or in any manner become
liable in respect of any indebtedness for borrowed money, except in the case of
Borrower, subordinated indebtedness in an amount not to exceed $50,000,000
(issued in compliance with 12 CFR 3), secured indebtedness under Section
6(b)(vi), and except as permitted with the express prior written consent of
LaSalle and, in the case of the Subsidiaries, indebtedness incurred in the
ordinary course of the business of banking and in accordance with applicable
laws and regulations and safe and sound banking practices. For purposes of
this Agreement, the phrase “indebtedness” shall mean and include:




               (i) all items arising from the borrowing of money, which according
to generally accepted accounting principles now in effect, would be
included in determining total liabilities as shown on the balance sheet;




               (ii) all indebtedness secured by any lien in property owned by the
Borrower whether or not such indebtedness shall have been assumed;




               (iii) all guarantees and similar contingent liabilities in respect
to indebtedness of others; and




               (iv) all other interest-bearing obligations evidencing indebtedness
in others;



          (b) create, assume, incur, suffer or permit to exist any mortgage, pledge,
deed of trust, encumbrance (including the lien or retained security title of a
conditional vendor), security interest, assignment, lien or charge of any kind
or character upon or with respect to property whether owned at the date hereof
or hereafter acquired by the Borrower or a Subsidiary, or assign or otherwise
convey any right to receive income, except:




               (i) liens for taxes, assessments or other governmental charges for
the then current year or which are not yet due or delinquent;




               (ii) liens for taxes, assessments or other governmental charges
already due, but the validity of which is being contested in good faith
in such a manner as not to make the property forfeitable;




               (iii) liens and charges incidental to current operations which are
not due or delinquent;




               (iv) liens for workmen’s compensation awards not due or delinquent;




               (v) pledges or deposits to secure obligations under workmen’s
compensation laws or similar legislation;



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               (vi) purchase money mortgages or other liens on real property
including those incurred for the construction of a banking facility, and
bank furniture and fixtures acquired or held in the ordinary course of
business to secure the purchase price of such property or to secure the
indebtedness incurred solely for the purpose of financing the
acquisition, construction or improvement of any such property to be
subject to such mortgages or other liens, or mortgages or other liens
existing on any such property at the time of acquisition, or extensions,
renewals, or replacements of any of the foregoing for the same or a
lesser amount; provided that no such mortgage or other liens shall extend
to or cover any property other than the property being acquired,
constructed or improved, and no such extension, renewal or replacement
shall extend to or cover any property not theretofore subject to the
mortgage or lien being extended, renewed or replaced, and provided
further that no such mortgage or lien shall exceed 75% of the price of
acquisition, construction or improvement at the time of acquisition,
construction or improvement; and provided further that the aggregate
principal amount of consolidated indebtedness at any one time outstanding
and secured by mortgages, liens, conditional sale agreements and other
security interests permitted by this clause (vi) shall not exceed 10% of
the consolidated capital of the Borrower or a Subsidiary in any given
calendar year, as the case may be;




               (vii) liens existing on the date hereof as shown on the financial
statements; and




               (viii) in the case of a Subsidiary, liens incurred in the ordinary
course of the business of banking and in accordance with applicable laws
and regulations and safe and sound banking practices;



          (c) dispose by sale, assignment, lease or otherwise property or assets now
owned or hereafter acquired, outside the ordinary course of business in excess
of 10% of its consolidated assets in any fiscal year;



          (d) merge into or consolidate with or into any other person, firm or
corporation;



          (e) make any loans or advances whether secured or unsecured to any person,
firm or corporation, other than loans or advances made by a Subsidiary in the
ordinary course of its banking business and in accordance with applicable laws
and regulations and safe and sound banking practices;



          (f) engage in any business or activity not permitted by all applicable
laws and regulations, including without limitation, the Bank Holding Company
Act of 1954, the Illinois Banking Act, the Federal Deposit Insurance Act and
any regulations promulgated thereunder;



          (g) make any loan or advance secured by the capital stock of another bank
or depository institution (except for loans made in the ordinary course of
business), or acquire the capital stock, assets or obligations of or any
interest in another bank or depository institution, without prior written
approval of LaSalle;



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          (h) directly or indirectly create, assume, incur, suffer or permit to
exist any pledge, encumbrance, security interest, assignment, lien or charge of
any kind or character on any capital stock owned by the Borrower, except
pursuant to the Pledge Agreement;



          (i) cause or allow the percent of any Subsidiary Stock to diminish as a
percentage of the outstanding capital stock of any such Subsidiary;



          (j) sell, transfer, issue, reissue, exchange or grant any option with
respect to the Subsidiary Stock, except pursuant to such agreements or
commitments therefor existing as of the date of this Agreement and disclosed to
LaSalle;



          (k) redeem any of its capital stock, declare a stock dividend or split or
otherwise change the capital structure of Borrower or any Subsidiary without
prior written approval of LaSalle, if such redemption, dividend, split or other
action would result in any change in the identity of the individuals or
entities previously in control of the Borrower or any Subsidiary or grant a
security interest in any ownership interest of any individual or entity,
directly or indirectly controlling the Borrower or any Subsidiary, which could
result in a change in the identity of the individuals or entities previously in
control of the Borrower or any Subsidiary. For the purpose hereof, the terms
“control” or “controlling” shall mean the possession of the power to direct, or
cause the direction of, the management and policies of the Borrower or a
Subsidiary, as applicable, by contract or voting of securities;



          (l) breach or fail to perform or observe any of the terms and conditions
of the Notes, the Pledge Agreement or any other document or agreement entered
into or delivered in connection with, or relating to, the Loan,



          (m) engage in any unsafe or unsound banking practices; or



          (n) violate any law or regulation, or any condition imposed by of
undertaking provided to the FRS, the FDIC or the Illinois Commissioner of Banks
and Real Estate in connection with the Borrower’s ownership of the Subsidiary
Stock.



     7. Affirmative Covenants.



     The Borrower agrees that until the Borrower satisfies all of its
obligations to LaSalle; including, but not limited to its obligations to pay in
full all principal, interest and other amounts in accordance with the terms of
the Agreement, the Notes and the Pledge Agreement, it shall:



          (a) furnish and deliver to LaSalle:




               (i) as soon as practicable, and in no event later than forty-five
(45) days after the end of each of the first three calendar quarters of
the Borrower and each Subsidiary, a copy of: (1) the balance sheet,
profit and loss statement, surplus statement and any supporting schedules
prepared in accordance with GAAP and signed by the presidents and chief
financial officers of the Borrower and each of the Subsidiaries; and (2)
all financial statements, including, but not limited to, all call
reports, filed with any state or federal bank regulatory authority;



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               (ii) as soon as practicable, and in no event later than one hundred
twenty (120) days after the end of each calendar year, a copy of: (1)
the consolidated balance sheets as of the end of such year and the
consolidated profit and loss and surplus statements for the Borrower and
its Subsidiaries for such year, audited by independent certified public
accountants satisfactory to LaSalle and accompanied by an unqualified
opinion; and (2) all financial statements and reports, including, but not
limited to call reports and annual reports, filed annually with any state
or federal regulatory authority;




               (iii) immediately upon request by LaSalle, copies of the then
current loan/asset watch list, the substandard loan/asset list, the
nonperforming loan/asset list and other real estate owned list of the
Subsidiaries;




               (iv) immediately after receiving knowledge thereof, notice in
writing of all charges, assessment, actions, suits and proceedings that
are proposed or initiated by, or brought before, any court or
governmental department, commission, board or other administrative
agency, in connection with the Borrower or any Subsidiary (other than
litigation in the ordinary course of business not involving the FRS, the
FDIC or the Illinois Commissioner of Banks and Real Estate, which, if
adversely decided, would not have a material effect on the financial
condition or operations of the Borrower or such Subsidiary); and




               (v) promptly after the occurrence thereof, notice of any other
matter which has resulted in a materially adverse change in the financial
condition or operations of the Borrower or any Subsidiary;



          (b) contemporaneously with the furnishing of a copy of each annual report
and of each quarterly statement provided pursuant to Section 7(a)(i) and (ii)
above, deliver to LaSalle, a certificate signed by the President and the
Treasurer of the Borrower, containing a computation of the then current
financial ratios specified in Subsections 7(d) through (h) of this Agreement,
and stating that no Default or unmatured Default has occurred or is continuing,
or, if such event exists, describing such event and the steps, if any, that are
being taken to cure it, and the time within which such cure will occur;



          (c) maintain such capital as is necessary to cause the Borrower to have
adequate capital in accordance with the regulations of the FRS and any
requirements or conditions that the FRS has or may impose on the Borrower;



          (d) maintain such capital as is necessary to cause each Subsidiary to be
classified as a “adequately capitalized” institution in accordance with the
regulations of the FDIC, currently measured on the basis of information filed
by Borrower in its quarterly Consolidated Report of Income and Condition (the
“Call Report”) as follows:




               (i) Total Capital to Risk-Weighted Assets of not less than 8%;




               (ii) Tier 1 Capital to Risk-Weighted Assets Of not less than 4%; and



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               (iii) Tier 1 Capital to average Total Assets of not less than 4%
(For the purposes of this subsection (d)(iii), the average Total Assets
shall be determined on the basis of information contained in the
preceding four (4) Call Reports);



          (e) cause the Borrower, on a consolidated basis, to maintain tangible
equity capital of no less than $150,000,000. For the purposes of this Section
7 (e), “tangible equity capital” shall mean the sum of the common stock,
surplus and retained earning accounts of the Borrower, reduced by the amount of
any goodwill;



          (f) cause the ratio of nonperforming loans to the primary capital of the
Subsidiaries, on a consolidated basis, to be not more than twenty percent (20%)
at all times. For purposes of this Section 7(f), “primary capital” shall mean
the sum of the common stock, surplus and retained earning accounts plus the
reserve for loan and lease losses, and “nonperforming loans” shall mean the sum
of all non-accrual loans and loans on which any payment is ninety (90) or more
days past due;



          (g) cause the ratios of the loan and lease loss reserve to the total loans
of the Subsidiaries, on a consolidated basis, to be not less than one half of
one percent (.50%) at all times;



          (h) cause the Borrower’s return on assets, determined on the basis of
information filed in the Borrower’s Call Report, to be at least thirty five
hundredths of one percent (.35%) at all times;



          (i) promptly pay and discharge all taxes, assessments and other
governmental charges imposed upon the Borrower or the Subsidiaries or upon the
income, profits or property of the Borrower or the Subsidiaries and all claims
for labor, material or supplies which, if unpaid, may by law become a lien or
charge upon the property of the Borrower or the Subsidiaries. Neither the
Borrower nor the Subsidiaries shall be required to pay any such tax,
assessment, charge or claim, so long as the validity thereof shall be contested
in good faith by appropriate proceedings, and reserves therefor shall be
maintained on the books of the Borrower or any such Subsidiary as are deemed
reasonably adequate by LaSalle;



          (j) maintain bonds and insurance and cause each Subsidiary to maintain
bonds and insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risk as is usually carried by
owners of similar businesses and properties in the same general area in which
the Borrower or such Subsidiary respectively operate, and such additional bonds
and insurance as may be reasonably required by LaSalle;



          (k) permit and cause the Subsidiaries to permit LaSalle, through its
employees, attorneys, accountants or other agents, to inspect any of the
properties, corporate books and financial books and records of the Borrower and
the Subsidiaries at such times and as often as LaSalle reasonably may request;
and



          (l) promptly provide and cause the Subsidiaries promptly to provide
LaSalle with such other information concerning the business, operations,
financial condition and regulatory status of the Borrower and the Subsidiaries
as LaSalle may from time to time reasonably request.



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     8. Collateral.



     Pursuant to the Pledge Agreement, the Borrower has herewith assigned,
transferred, pledged and delivered to LaSalle as collateral for all of the
Borrower’s obligations from time to time to LaSalle the Subsidiary Stock and
any other Pledged Security (as defined in the Pledge Agreement) whether now or
hereafter pledged.



     9. Events of Default; Default; Rights Upon Default.



     The happening or occurrence of any of the following events or acts shall
each constitute a default hereunder (each, a “Default”), and any such default
shall also constitute a Default under the Notes, the Pledge Agreement and any
other loan document, without right to notice or time to cure in favor of the
Borrower except as indicated below:



          (a) if the Borrower fails to make any payment, as provided for herein;



          (b) if there continues to exist any breach under any obligation of any
other documents executed pursuant to this Agreement including, without
limitation, the Notes and the Pledge Agreement and such breach remains uncured
beyond the applicable time period, if any, specifically provided therefor;



          (c) if any representation or warranty made in this Agreement shall be
false when made or be false at any time during the term of this Agreement or
any extension hereof, or if the Borrower fails to perform or observe any
covenant or agreement contained in this Agreement within thirty (30) days after
notice thereof by LaSalle;



          (d) if the Borrower fails to perform or observe any covenant or agreement
contained in any other agreement between the Borrower or any Subsidiary and
LaSalle, or if any condition contained in any agreement between the Borrower or
any Subsidiary and LaSalle is not fulfilled and such failure remains uncured
beyond the cure period, if any, specifically provided therefor;



          (e) if the Borrower shall continue to fail to perform and observe, or
cause at permit any Subsidiary to fail to perform and observe any covenants
under this Agreement, including, without limitation, all affirmative and
negative covenants set forth in Sections 6 and 7 of this Agreement for fifteen
(15) days after notice thereof by LaSalle;



          (f) if the FRS, the FDIC, the Illinois Commissioner of Banks and Real
Estate or other governmental agency charged with the regulation of bank holding
companies or depository institutions: (i) issues to the Borrower or any
Subsidiary, or initiates any action, suit or proceeding to obtain against,
impose on or require from the Borrower, or any Subsidiary, a cease and desist
order or similar regulatory order, the assessment of civil monetary penalties,
articles of agreement, a memorandum of understanding, a capital directive, a
capital restoration plan, restrictions that prevent or as a practical matter
impair the payment of dividends by any Subsidiary (except those de novo
Subsidiaries in their first three years of existence) or the payments of any
debt by the Borrower, restrictions that make the payment of dividends by any
Subsidiary or the payment of debt by the Borrower subject to prior regulatory
approval, a notice or finding under section 51 or section 52 of the Illinois
Banking Act or section 8(a) of the



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Federal Deposit Insurance Act, or any similar enforcement action, measure
or proceeding; or (ii) issues to any officer or director of the Borrower, or
any Subsidiary, or initiates any action, suit or proceeding to obtain against,
impose on or require from any such officer or director, a cease and desist
order or similar regulatory order, a removal order, a suspension order, or the
assessment of civil monetary penalties;



          (g) if any Subsidiary is notified that it is considered an institution in
“troubled condition” within the meaning of 12 U.S.C. Section 1831i and the
regulations promulgated thereunder, or if a conservator or receiver is
appointed for any Subsidiary;



          (h) if the Borrower or any Subsidiary (i) becomes insolvent or is unable
to pay its debts as they mature; (ii) makes an assignment for the benefit of
creditors or admits in writing its inability to pay its debts as they mature;
(iii) suspends transaction of its usual business; or (iv) if a trustee of any
substantial part of the assets of the Borrower or any Subsidiary is applied for
or appointed, and if appointed in a proceeding brought against the Borrower,
the Borrower by any action or failure to act indicates its approval of, consent
to, or acquiescence in such appointment, or within thirty (30) days such
appointment is not vacated or stayed on appeal or otherwise, or shall not
otherwise have ceased to continue in effect;



          (i) if any proceedings involving the Borrower or any Subsidiary are
commenced by or against the Borrower or any Subsidiary under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation law or statute of the federal government or any state government
and if such proceedings are instituted against the Borrower, the Borrower by
any action or failure to act indicates its approval of, consent to or
acquiescence therein, or an order shall be entered approving the petition in
such proceedings and within thirty (30) days after the entry thereof such order
is not vacated or stayed on appeal or otherwise, or shall not otherwise have
ceased to continue in effect, or



          (j) if the Borrower or any Subsidiary continues to be in default in any
payment of principal or interest for any other obligation or in the performance
of any other term, condition or covenant contained in any agreement (including,
but not limited to, an agreement in connection with the acquisition of capital
equipment on a title retention or net lease basis), under which any such
obligation is created, the effect of which default is to cause or permit the
holder of such obligation to cause such obligation to become due prior to its
stated maturity.



     Upon the occurrence of a Default, LaSalle shall have all rights and
remedies provided by applicable law and, without limiting the generality of the
foregoing, may, at its option, declare its commitments to be terminated and the
Notes shall thereupon be and become forthwith, due and payable, without any
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower, anything contained herein, in the
Notes or the Pledge Agreement to the contrary notwithstanding, and may, also
without limitation, appropriate and apply toward the payment of the Notes any
indebtedness of LaSalle to the Borrower however created or arising, and may,
also without limitation exercise any and all rights in and to the Pledged
Security referred to in Section 6 above and in the Pledge Agreement. There
shall be no obligation to liquidate the Pledged Security nor any other
collateral pledged hereunder in any order or with any priority or to exercise
any remedy available to LaSalle in any order,



14









 





     10. Miscellaneous.



          (a) No failure or delay on the part of LaSalle in exercising any right,
power or remedy hereunder shall operate as a waiver thereof. No single or
partial exercise of any such right, power or remedy shall preclude any other or
further exercise thereof or the exercise of any other right, power or remedy
hereunder. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law. Time is of the essence in the performance of the
covenants, agreements and obligations of the Borrower and the Subsidiaries.



          (b) This Agreement constitutes the entire agreement between the parties
and supersedes all prior agreements between LaSalle and the Borrower with
respect to the subject matter hereof. No amendment, modification, termination
or waiver of any provision of this Agreement, the Pledge Agreement or the
Notes, or consent to any departure by the Borrower therefrom, shall be
effective unless in writing and signed by LaSalle, and then such waiver or
consent shall be effective only for the specific purpose for which given. No
notice to or demand on the Borrower in any case shall entitle the Borrower to
any other or further notice or demand in similar or other circumstances.



          (c) All notices, requests, demands and other communications provided for
hereunder shall be: (i) in writing, (ii) made in one of the following manners,
and (iii) shall be deemed given (A) if and when personally delivered; (B) on
the next business day if sent by nationally recognized overnight courier
addressed to the appropriate party as set forth below; or (C) on the second
business day after being deposited in United States certified or registered
mail, and addressed as follows:



	 	 	 	 	 
	

	 	If to Borrower:
	 	Wintrust Financial Corporation
	

	 	 	 	727 North Bank Lane
	

	 	 	 	Lake Forest, Illinois 60045
	

	 	 	 	Attention: Edward J. Wehmer
	 
	 	 	 	 
	

	 	If to LaSalle:
	 	LaSalle Bank National Association
	

	 	 	 	135 South LaSalle Street
	

	 	 	 	Chicago, Illinois 60674
	

	 	 	 	Attention: Jeffery J. Bowden






or, as to each party, at such other address as shall be designated by such
party in a written notice to each other party complying as to delivery with the
terms of this subsection.




          (d) This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument.



          (e) This Agreement shall become effective when it shall have been executed
by the Borrower and LaSalle and thereafter shall be binding upon and inure to
the benefit of the Borrower, LaSalle and their respective successors and
assigns; provided, that the Borrower shall not assign its rights hereunder or
any interest herein without the prior written consent of LaSalle.



15









 





          (f) This Agreement and the Notes shall be governed by the internal laws of
the State of Illinois, and for all purposes shall be construed in accordance
with the laws of said State without giving effect to the choice of law
provisions of such State.



          (g) Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or lack of enforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law.



          (h) All covenants, agreements, representations and warranties made by the
Borrower herein shall, notwithstanding any investigation by or knowledge on the
part of LaSalle, be deemed material and relied on by LaSalle and shall survive
the execution and delivery to LaSalle of this Agreement and the Notes.



          (i) This Agreement shall govern the terms of any extensions or renewals of
the Notes, subject to any additional terms and conditions imposed by LaSalle in
connection with any such extension or renewal.



          (j) The Borrower hereby represents that the indebtedness evidenced hereby
constitutes a loan made by LaSalle to enable the Borrower to carry on a
commercial enterprise for the purpose of investment or profit; and that such
loan is a loan for business purposes under the intent and purview of 815 ILCS
205/4.



          (k) LASALLE AND THE BORROWER, AFTER CONSULTING OR HAVING HAD THE
OPPORTUNITY TO CONSULT WITH COUNSEL, EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE IRREVOCABLY THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY
LEGAL PROCEEDING BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT, THE NOTES, THE COLLATERAL, OR ANY OTHER AGREEMENT EXECUTED OR
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS AGREEMENT, OR ANY COURSE
OF CONDUCT OR COURSE OF DEALING IN WHICH LASALLE AND THE BORROWER ARE ADVERSE
PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LASALLE GRANTING ANY
FINANCIAL ACCOMMODATION TO THE BORROWER,



          (l) TO INDUCE LASALLE TO MAKE THE LOAN, THE BORROWER IRREVOCABLY AGREES
THAT ALL ACTIONS ARISING DIRECTLY OR INDIRECTLY AS A RESULT OR CONSEQUENCE OF
THIS AGREEMENT, THE NOTES, THE PLEDGE AGREEMENTS OR ANY OTHER AGREEMENT WITH
LASALLE SHALL BE INSTITUTED AND LITIGATED ONLY IN COURTS HAVING SITUS IN THE
CITY OF CHICAGO, ILLINOIS. THE BORROWER HEREBY CONSENTS TO THE EXCLUSIVE
JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT HAVING ITS SITUS IN
CHICAGO, AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS, THE BORROWER
HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND CONSENTS THAT ALL
SUCH SERVICE OF PROCESS MAY



16









 




BE MADE BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO THE
BORROWER AS SET FORTH HEREIN IN THE MANNER PROVIDED BY APPLICABLE STATUTE, LAW,
RULE OF COURT OR OTHERWISE.




          (m) The Borrower will pay all reasonable costs and expenses (including,
without limitation, reasonable attorneys’ fees) in connection with the
preparation, negotiation, documentation, execution and delivery of this
Agreement, and shall pay all reasonable costs and expenses (including, without
limitation, reasonable attorneys’ fees) for the administration, amendment,
modification, collection and enforcement of this Agreement, the Notes, the
Pledge Agreement and the other instruments and documents to be delivered
hereunder. In addition, the Borrower shall pay, and save LaSalle harmless from
any liability for, any and all stamp and other taxes determined to be payable
in connection with the execution and delivery of this Agreement, the borrowings
hereunder, or the Notes and the other instruments and documents to be delivered
hereunder, and agrees to save LaSalle harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omitting
to pay such taxes. The foregoing obligations shall survive any termination of
this Agreement, the Notes or the Pledge Agreement. Any of the foregoing
amounts incurred by LaSalle and not paid by the Borrower upon demand shall bear
interest from the date incurred at the Prime Rate plus two percent (2%) per
annum and shall be deemed part of the indebtedness hereunder.



          (n) Any accounting term not specifically defined herein shall be construed
in accordance with generally accepted accounting principles and all financial
data submitted pursuant to this Agreement shall be prepared in accordance with
such principles.



          (o) LaSalle reserves the right to sell participations in this Loan or
otherwise assign, transfer or hypothecate all or any part of this Loan.



          (p) All covenants, agreements warranties and representations of the
Borrower herein shall be deemed to have been made jointly and severally by the
Borrower and the Subsidiaries.



          (q) The Borrower agrees to do such further acts and things and to execute
and deliver to LaSalle such additional assignments, agreements, powers and
instruments as LaSalle may reasonably require or deem advisable to carry into
affect the purpose of this Agreement, the Notes, the Pledge Agreement or any
agreement or instrument in connection herewith, or to better assure and confirm
unto the LaSalle its rights, powers and remedies hereunder or under such other
loan documents.



(remainder of page left intentionally blank; signature page follows)




17









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.



	 	 	 	 	 	 	 	 	 	 	 
	LASALLE BANK NATIONAL ASSOCIATION	 	WINTRUST FINANCIAL CORPORATION
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 	 	 	 	 
	

	 	
 
	 	 	 	
 	 	 	 	 
	Its:

	 	 	 	Its:	 	 	 	 	 	 
	

	 	
 
	 	 	 	
 	 	 	 	 








18