exv10w1



 





Exhibit 10.1




SUBORDINATED NOTE



THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION.
THIS OBLIGATION IS SUBORDINATED TO THE CLAIMS OF DEPOSITORS, IS INELIGIBLE AS COLLATERAL FOR A LOAN
BY THE LENDER, AND IS NOT SECURED.




$25,000,000





					
	Date: October 25, 2005
	 	 
	 	Maturity Date: May 29, 2015






     WINTRUST FINANCIAL CORPORATION, an Illinois corporation (the “Borrower”), promises to
pay to the order of LASALLE BANK NATIONAL ASSOCIATION (the “Lender”), at the Lender’s
offices at 135 S. LaSalle Street, Chicago, Illinois 60603, in lawful money of the United States of
America, the principal amount of TWENTY FIVE MILLION AND 00/THS DOLLARS ($25,000,000), together
with interest on the part of the principal amount from time to time remaining unpaid from this date
until such principal is paid at the rate and payable in the manner set forth below.



     The entire unpaid principal of this Note and any accrued interest then unpaid shall be due and
payable on or before May 29, 2015 (the “Maturity Date”). The interest on this Note shall be due
and payable quarterly commencing November 29, 2005 and continuing on each February 28, May 29,
August 29 and November 29 thereafter, and on the date on which this Note is payable, or after
maturity, on demand. The Borrower shall have the right and privilege of prepaying all or any part
of this Note at any time without notice or penalty, subject to approval of the Federal Reserve Bank
(if required), and all payments on this Note shall be applied first to accrued interest and the
balance, if any, to principal.



     Borrower shall make a principal payment of Five Million Dollars ($5,000,000) on May 29, 2011
and on the same day of each year thereafter, through and including May 29, 2015 and a final payment
of the principal balance due, if any, shall be paid on May 29, 2015.



     The unpaid principal amount hereof shall bear interest from the date hereof until the Maturity
Date, at the option of the Borrower at (i) the Prime Rate, or (ii) the LIBOR Rate (as hereinafter
defined) for the “Interest Period” (as hereinafter defined) then in effect plus 160 basis points.
The Prime Rate and the LIBOR Rate shall be computed on the basis of a year consisting of 360 days
and shall be paid for the actual number of days elapsed, unless otherwise specified herein.



     “Prime Rate” shall mean the rate of interest which Bank announces as its Prime Rate
and does not necessarily mean that it is the best or lowest rate charged to its customers. The
Prime Rate hereunder shall change if and when the Prime Rate of Lender changes.



     “LIBOR” means the rate of interest equal to the offered rate for deposits in United
States dollars for an Interest Period as published in Bloomberg’s LIBOR BBA US Dollar Fixing Report
at approximately 11:30 a.m. (London, England time) one banking day prior to the first day of such
Interest Period, such rate to remain fixed for the applicable Interest Period. “Interest
Period” shall



 









 






mean each successive three month period and each successive Interest Period shall
commence on the day on which the immediately preceding Interest Period expires, provided that (a)
the first and last Interest Periods of the Loan may be less than three months, and (b) the final
Interest Period shall be such that its expiration occurs on or before the stated maturity date of
this Note.



     Lender’s determination of LIBOR as provided above shall be conclusive, absent manifest error.
Furthermore, if Lender determines, in good faith (which determination shall be conclusive, absent
manifest error), prior to the commencement of any Interest Period that (i) U.S. Dollar deposits of
sufficient amount and maturity for funding the Loans are not available to Lender in the London
Interbank Eurodollar market in the ordinary course of business, or (ii) 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 Loans requested by Borrower to be LIBOR
Rate Loans or the Loans bearing interest at the rates set forth in this paragraph shall not
represent the effective pricing to Lender for U.S. Dollar deposits of a comparable amount for the
relevant period (such as for example, but not limited to, official reserve requirements required by
Regulation D to the extent not given effect in determining the rate), Lender shall promptly notify
Borrower and no additional LIBOR Rate Loans shall be made until such circumstances are cured.



     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 Lender or other fiscal, monetary or other authority having
jurisdiction over Lender or its lending offices (a “Regulatory Change”), shall, in the
opinion of counsel to Lender, make it unlawful for Lender to make or maintain LIBOR Rate Loans,
then Lender shall promptly notify Borrower and (i) the LIBOR Rate Loans shall immediately convert
to Prime Rate Loans on the last Business Day of the then existing Interest Period or on such
earlier date as required by law and (ii) no additional LIBOR Rate Loans shall be made until such
circumstance is cured.



     If, for any reason, a LIBOR Rate Loan is paid prior to the last Business Day of any Interest
Period or if a LIBOR Rate Loan does not occur on a date specified by Borrower in its request (other
than as a result of a default by Lender), Borrower agrees to indemnify Lender against any loss
(including any loss on redeployment of the deposits or other funds acquired by Lender to fund or
maintain such LIBOR Rate Loan) cost or expense incurred by Lender as a result of such prepayment.



     If any Regulatory Change (whether or not having the force of law) shall (i) 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, Lender; (ii) subject Lender or the LIBOR Rate Loans to any Tax (“Tax”
shall mean in relation to any LIBOR Rate Loans and the applicable LIBOR Rate, any tax, levy,
impost, duty, deduction, withholding or charges of whatever nature required (i) to be paid by
Lender and/or (ii) to be withheld or deducted from any payment otherwise required hereby to be made
by Borrower to Lender; provided, that the term “Tax” shall not include any taxes imposed upon the
net income of Lender) or change the basis of taxation of payments to Lender of principal or
interest due from Borrower to Lender hereunder (other than a change in the taxation of the overall
net income of Lender); or (c) impose on Lender any other condition regarding the LIBOR Rate Loans
or Lender’s funding thereof, and Lender shall determine (which determination shall be conclusive,
absent any manifest error) that the result of the foregoing is to increase the cost to Lender
of



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making or maintaining the LIBOR Rate Loans or to reduce the amount of principal or interest
received by Lender hereunder, then Borrower shall pay to Lender, on demand, such additional amounts
as Lender shall, from time to time, determine are sufficient to compensate and indemnify Lender
from such increased cost or reduced amount.




     Lender shall receive payments of amounts of principal of and interest with respect to the
LIBOR Rate Loans free and clear of, and without deduction for, any Tax. If (1) Lender shall be
subject to any Tax in respect of any LIBOR Rate Loans or any part thereof or, (2) Borrower shall be
required to withhold or deduct any Tax from any such amount, the LIBOR Rate applicable to such
LIBOR Rate Loans shall be adjusted by Lender to reflect all additional costs incurred by Lender in
connection with the payment by Lender or the withholding by Borrower of such Tax and Borrower shall
provide Lender with a statement detailing the amount of any such Tax actually paid by Borrower.
Determination by Lender of the amount of such costs shall be conclusive, absent manifest error. If
after any such adjustment any part of any Tax paid by Lender is subsequently recovered by Lender,
Lender shall reimburse Borrower to the extent of the amount so recovered. A certificate of an
officer of Lender setting forth the amount of such recovery and the basis therefor shall be
conclusive, absent manifest error.



     Borrower hereby further promises to pay to the order of Lender, on demand, interest on the
unpaid principal amount hereof after maturity (whether by acceleration or otherwise) at the
Lender’s Prime Rate plus two percent (2%).



     The indebtedness of the Borrower evidenced by this Note, including the principal and premium,
if any, and interest shall be subordinate and junior in right of payment to its obligations to its
depositors, its obligations under bankers’ acceptances and letters of credit, and its obligations
to its other creditors, including its obligations to the Federal Reserve Bank, Federal Deposit
Insurance Corporation (FDIC), and any rights acquired by the FDIC as a result of loans made by the
FDIC to the Borrower or the purchase or guarantee of any of its assets by the FDIC pursuant to the
provisions of 12 USC 1823(c), (d) or (e), whether now outstanding or hereafter incurred. In the
event of any insolvency, receivership, conservatorship, reorganization, readjustment of debt,
marshaling of assets and liabilities or similar proceedings or any liquidation or winding up of or
relating to the Borrower, whether voluntary or involuntary, all such obligations shall be entitled
to be paid in full before any payment shall be made on account of the principal of, or premium, if
any, or interest, on the Note. In the event of any such proceedings, after payment in full of all
sums owing on such prior obligations, the holder, of the Note, together with any obligations of the
Borrower ranking on a parity with the Note, shall be entitled to be paid from the remaining assets
of the Borrower the unpaid principal thereof and any unpaid premium, if any, and interest before
any payment or other distribution, whether in cash, property, or otherwise, shall be made on
account of any capital stock or any obligations of the Borrower ranking junior to the Note. Nothing
herein shall impair the obligation of the Borrower, which is absolute and unconditional, to pay the
principal of and any premium and interest on the Note according to its terms.



     This Note shall become immediately due and payable, at the option of the holder, without
presentment or demand or any notice to the Borrower or any other person obligated, (i) upon default
in the payment of any of the principal or interest, for a period of 15 days after such payment is
due; or (ii) upon default (a) in the payment of any of the principal of or interest on any other
indebtedness of the Borrower for borrowed money owing from the Borrower to the Lender, or (b)



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in the payment of any other material indebtedness for borrowed money and, in either event, the
continuance of such default beyond any period of grace provided for in the instrument or
instruments evidencing such indebtedness.



     The Borrower waives demand, presentment for payment, notice of nonpayment, notice of protest,
and all other notices.



     Notwithstanding any other provisions of this Note, including specifically those set forth in
the sections relating to subordination, events of default and covenants of the Borrower, it is
expressly understood and agreed that the Federal Reserve Bank (FRB) or any receiver or conservator
of the Borrower appointed by the FRB shall have the right in the performance of his legal duties,
and as part of liquidation designed to protect or further the continued existence of the Borrower
or the rights of any parties or agencies with an interest in, or claim against, the Borrower or its
assets, to transfer or direct the transfer of the obligations of this Note to any bank or bank
holding company selected by such official which shall expressly assume the obligation of the due
and punctual payment of the unpaid principal, and interest and premium, if any, on this Note and
the due and punctual performance of all covenants and conditions; and the completion of such
transfer and assumption shall serve to supersede and void any default, acceleration or
subordination which may have occurred, or which may occur due or related to such transaction, plan,
transfer or assumption, pursuant to the provisions of this Note, and shall serve to return the
holder to the same position, other than for substitution of the obligor, it would have occupied had
no default, acceleration or subordination occurred; except that any interest and principal
previously due, other than by reason of acceleration, and not paid shall, in the absence of a
contrary agreement by the holder of this Note, be deemed to be immediately due and payable as of
the date of such transfer and assumption, together with the interest from its original due date at
the rate provided for herein.



     Borrower hereby authorizes the Lender to charge any account of the Borrower for sums due
hereunder. Principal payments submitted in funds not available until collected shall continue to
bear interest until collected. If payment hereunder becomes due and payable on a Saturday, Sunday
or legal holiday under the laws of the United States or the State of Illinois, the due date thereof
shall be extended to the next succeeding business day, and interest shall be payable thereon at the
rate specified during such extension.



     Borrower shall be in default hereunder if: (1) any amount payable on this Note (the
“Obligations”), is not paid when due; or (2) Borrower shall otherwise fail to perform any
of the material promises to be performed by it hereunder or under any other agreement with Lender
and all applicable grace periods have expired; or (3) the Borrower or any person who is or shall
become primarily or secondarily liable for any of the Obligations, who is a natural person, dies;
or (4) the Borrower, or any other party liable with respect to the Obligations, or any guarantor or
accommodation endorser or third party pledgor, shall make any assignment for the benefit of
creditors, or there shall be commenced any bankruptcy, receivership, insolvency, reorganization,
dissolution or liquidation proceedings by or against, or the entry of any judgment, levy,
attachment, garnishment or other process against the Borrower or any guarantor, or any other party
liable with respect to the Obligations, or accommodation endorser or third party pledgor for any of
the Obligations or against any of the Collateral or any of the collateral under a separate security
agreement signed by any one of them, unless released, satisfied or dismissed within thirty (30)
days; or (5) there is a discontinuance or termination by any guarantor of any guaranty of the



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Obligations hereunder, or any guarantor of this Note shall contest the validity of such guaranty;
or (6) failure of the Borrower, after request by the Lender, to furnish financial information
concerning the Borrower or to permit inspection by the Lender of the Borrower’s books and records;
(7) the determination by the Lender that a material adverse change has occurred in the financial
condition of the Borrower from the condition set forth in the most recent financial statement of
the Borrower furnished to the Lender, or from the financial condition of the Borrower most recently
disclosed to Lender in any manner; or (8) any oral or written warranty, representation, certificate
or statement of the Borrower to the Lender is untrue.



     Whenever the Borrower shall be in default as aforesaid, without demand or notice of any kind,
the entire unpaid amount of all Obligations shall become immediately due and payable and Lender may
exercise, from time to time, any and all rights and remedies available to it.



     The Borrower waives the benefit of any law that would otherwise restrict or limit Lender in
the exercise of its right, which is hereby acknowledged, to appropriate without notice, at any time
hereafter, any indebtedness matured or unmatured, owing from Lender to the Borrower. The Lender
may, from time to time, without demand or notice of any kind, appropriate and apply toward the
payment of such of the obligations, and in such order of application, as the Lender may, from time
to time, elect any and all such balances, credits, deposits, accounts, moneys, cash equivalents and
other assets, of or in the name of the Borrower, then or thereafter with the Lender.



     The Borrower and any and all endorsers and accommodation parties, and each of them, waive any
and all presentment, demand, notice of dishonor, protest, and all other notices and demands in
connection with the enforcement of Lender’s rights hereunder. No obligation of the Borrower
hereunder shall be waived by the Lender except in writing. No delay on the part of the Lender in
the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial
exercise by the Lender of any right or remedy shall preclude other or further exercise thereof, or
the exercise of any other right or remedy. This Note (i) is valid, binding and enforceable in
accordance with its provisions, and no conditions exist to its legal effectiveness; (ii) contains
the entire agreement between the Borrower and Lender with respect to the Obligations; (iii) is the
final expression of their intentions with respect to the Obligations; and (iv) supersedes all
negotiations, representations, warranties, commitments, offers, contracts (of any kind or nature,
whether oral or written) prior to or contemporaneous with the execution hereof. No prior or
contemporaneous representations, warranties, understandings, offers or agreements of any kind or
nature, whether oral or written have been made by Lender or relied upon by the Borrower in
connection with the execution hereof. No modification, discharge, termination or waiver or any of
the provisions hereof shall be binding upon the Lender, except as expressly set forth in writing
duly signed and delivered on behalf of the Lender.



     The Borrower agrees to pay all costs, legal expenses, attorneys’ fees and paralegals’ fees of
every kind, paid or incurred by Lender in enforcing its rights hereunder, including, but not
limited to, litigation or proceedings initiated under the United States Bankruptcy Code, or in
defending against any defense, cause of action, counterclaim, setoff or crossclaim based on any act
of commission or omission by the Lender with respect to this Note, promptly on demand of Lender or
other person paying or incurring the same.



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     To induce the Lender to make the loan evidenced by this Note, the Borrower irrevocably agrees
that all actions arising directly or indirectly as a result or in consequence of this Note or any
other agreement with the Lender may be instituted and litigated in courts having situs in the City
of Chicago, Illinois, and the Borrower hereby consents to the exclusive jurisdiction and venue of
any State or Federal Court located and having its situs in said city, and waives any objection
based on forum nonconveniens. Furthermore, the Borrower waives all notices and demands in
connection with the enforcement of the Lender’s rights hereunder.



     The loan evidenced hereby has been made and this Note has been delivered at the Lender’s main
office. This Note shall be governed and construed in accordance with the laws of the State of
Illinois, in which state it shall be performed, and shall be binding upon the Borrower and their
respective heirs, legal representatives, successors and assigns. Wherever possible, each
provision of this Note shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Note shall be prohibited by or be invalid under such
law, such provision shall be severable, and be ineffective to the extent of such prohibition or
invalidity, without invalidating the remaining provisions of this Note.



     The Borrower acknowledges and agrees that the lending relationship hereby created with the
Lender is and has been conducted on an open and arm’s length basis in which no fiduciary
relationship exists and that the Borrower has not relied and is not relying on any such fiduciary
relationship in consummating the loan(s) evidenced by this Note.



     THE LENDER AND THE BORROWER KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE IRREVOCABLY, THE
RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDINGS BASED HEREON, OR ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS NOTE, OR ANY AGREEMENT EXECUTED OR CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH OR ANY COURSE OF CONDUCT OR COURSE OF DEALING, IN WHICH THE LENDER AND THE
BORROWER ARE ADVERSE PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER GRANTING ANY
FINANCIAL ACCOMMODATION TO THE BORROWER.



	 	 	 	 	 	 	 
	 	 	WINTRUST FINANCIAL CORPORATION
	 
	 	 	 	 	 	 
	 

	 	By:

Name:

Title:
	 	/s/ David A. Dykstra

David A. Dykstra

Senior Executive Vice President and Chief
 Operating Officer	 	 







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