EXHIBIT 4.4
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of September 24, 2004 (this "Trust
Agreement"), among (i) Wintrust Financial Corporation, an Illinois corporation
(the "Depositor"), (ii) Wilmington Trust Company, a Delaware banking
corporation, as trustee, and (iii) Xxxxx X. Xxxxxx, an individual, as trustees
(each of such trustees in (ii) and (iii) a "Trustee" and collectively, the
"Trustees"). The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "Wintrust
Capital Trust VI" in which name the Trustees, or the Depositor to the
extent provided herein, may engage in the transactions contemplated
hereby, make and execute contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of Twenty-Five Dollars ($25.00). The Trustees hereby
acknowledge receipt of such amount in trust from the Depositor, which
amount shall constitute the initial trust estate. The Trustees hereby
declare that they will hold the trust estate in trust for the
Depositor. It is the intention of the parties hereto that the Trust
created hereby constitute a Delaware statutory trust under chapter 38,
title 12 of the Delaware Code, 12 Del. C. Section 3801, et seq. (the
"Delaware Trust Act"), and that this document constitute the governing
instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Delaware
Secretary of State in accordance with the provisions of the Delaware
Trust Act.
3. The Depositor and the Trustees will enter into an amended and restated
Trust Agreement, satisfactory to each such party and substantially in
the form included as an exhibit to the 1933 Act Registration Statement
(as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of Preferred Securities and
Common Securities to be referred to therein. Prior to the execution and
delivery of such amended and restated Trust Agreement, the Trustees
shall not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or as may
be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or
otherwise.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities
and Exchange Commission (the "Commission") and execute, in each case on
behalf of the Trust, (a) the Registration Statement on Form S-3 (the
"1933 Act Registration Statement") (including any pre-effective or
post-effective amendments to the 1933 Act Registration Statement)
relating to the registration under the Securities Act of 1933, as
amended, of the Preferred Securities of the Trust and possibly certain
other securities and (b) a Registration Statement on Form 8-A (the
"1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange Act of
1934, as amended; (ii) to file with the New York Stock Exchange or
other national stock exchange or automated quotation system (each, an
"Exchange") and execute on behalf of the Trust one or more listing
applications and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to
cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments
of attorney for service of process and other papers and documents as
shall be necessary or desirable to register the Preferred Securities
under the securities or blue sky laws of such jurisdictions as the
Depositor, on behalf of the Trust, may deem necessary or desirable; and
(iv) to execute on behalf of the Trust that certain Underwriting
Agreement relating to the Preferred Securities, among the Trust, the
Depositor and the Underwriters named therein, substantially in the form
included as an exhibit to the 1933 Act Registration Statement. In the
event that any filing referred to in clauses (i), (ii) and (iii) above
is required by the rules and regulations of the Commission, an
Exchange, or state securities or blue sky laws to be executed on behalf
of the Trust by one or more of the Trustees, each of the Trustees, in
its or his capacity as a Trustee of the Trust, is hereby authorized
and, to the extent so required, directed to join in any such filing and
to execute on behalf of the Trust any and all of the foregoing, it
being understood that Wilmington Trust Company in its capacity as a
Trustee of the Trust shall not be required to join in any such filing
or execute on behalf of the Trust any such document unless required by
the rules and regulations of the Commission, the Exchange or state
securities or blue sky laws.
In connection with the filings referred to above, the Depositor and
Xxxxx X. Xxxxxx, as Trustee and not in his individual capacity, hereby
constitute and appoint Xxxxx X. Xxxxxx, as their true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Depositor or such Trustee or in the Depositor's
or such Trustee's name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments) to
the 1933 Act Registration Statement and the 1934 Act Registration
Statement and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Commission, the Exchange
and administrators of the state securities or blue sky laws, granting
unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully to all intents and purposes as
the Depositor or such Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their respective substitute or substitutes, shall do or
cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be two (2) and thereafter the
number of Trustees shall be such number as shall be fixed from time to
time by a written instrument signed by the Depositor which may increase
or decrease the number of Trustees; provided, however, that to the
extent required by the Delaware Trust Act, one Trustee shall either be
a natural person who is a resident of the State of Delaware or, if not
a natural person, an entity which has its principal place of business
in the State of Delaware and otherwise meets the requirements of
applicable Delaware law. Subject to the foregoing, the Depositor is
entitled to appoint or remove without cause any Trustee at any time.
The Trustees may resign upon thirty (30) days' prior notice to the
Depositor.
7. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of
laws principles).
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8. The Trustees (the "Fiduciary Indemnified Persons") shall not be liable,
responsible or accountable in damages or otherwise to the Trust, the
Depositor, the Trustees or any holder of the Trust's securities (the
Trust, the Depositor and any holder of the Trust's securities being a
"Covered Person") for any loss, damage or claim incurred by reason of
any act or omission performed or omitted by the Fiduciary Indemnified
Persons in good faith on behalf of the Trust and in a manner the
Fiduciary Indemnified Persons reasonably believed to be within the
scope of authority conferred on the Fiduciary Indemnified Persons by
this Trust Agreement or by law, except that the Fiduciary Indemnified
Persons shall be liable for any such loss, damage or claim incurred by
reason of the Fiduciary Indemnified Person's gross negligence or
willful misconduct with respect to such acts or omissions.
The Fiduciary Indemnified Persons shall be fully protected in relying
in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any person as
to matters the Fiduciary Indemnified Persons reasonably believe are
within such other person's professional or expert competence and who
has been selected with reasonable care by or on behalf of the Trust,
including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other
facts pertinent to the existence and amount of assets from which
distributions to holders of the Trust's securities might properly be
paid.
9. The Depositor agrees, to the fullest extent permitted by applicable
law,
(a) to indemnify and hold harmless each Fiduciary Indemnified
Person, or any of its officers, directors, shareholders,
employees, representatives or agents, from and against any
loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by the Fiduciary
Indemnified Persons by reason of the creation, operation or
termination of the Trust in a manner the Fiduciary Indemnified
Persons reasonably believed to be within the scope of
authority conferred on the Fiduciary Indemnified Persons by
this Trust Agreement, except that no Fiduciary Indemnified
Persons shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by the Fiduciary Indemnified
Persons by reason of gross negligence or willful misconduct
with respect to such acts or omissions; and
(b) to advance expenses (including legal fees) incurred by a
Fiduciary Indemnified Person in defending any claim, demand,
action, suit or proceeding, from time to time, prior to the
final disposition of such claim, demand, action, suit or
proceeding, upon receipt by the Trust of an undertaking by or
on behalf of such Fiduciary Indemnified Person to repay such
amount if it is determined that such Fiduciary Indemnified
Person is not entitled to be indemnified as authorized in the
preceding subsection.
10. The provisions of Section 9 shall survive the termination of this Trust
Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
Wintrust Financial Corporation, as Depositor
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: EVP-CFO
Wilmington Trust Company, as Trustee
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Financial Services Officer
/s/ Xxxxx X. Xxxxxx
----------------------------------, as Trustee
Name: Xxxxx X. Xxxxxx
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