EXHIBIT 99.1
SIXTH AMENDMENT TO
LOAN AGREEMENT
THIS SIXTH AMENDMENT TO LOAN AGREEMENT dated as of June 1, 2001 (this
"Amendment"), is between WINTRUST FINANCIAL CORPORATION, an Illinois corporation
(the "Borrower"), and LASALLE BANK NATIONAL ASSOCIATION, a national banking
association (the "Bank").
RECITALS
A. the Borrower and the Bank entered into a Loan Agreement dated as of
August 30, 1996, as amended by a First Amendment thereto dated March 1, 1997, a
Second Amendment thereto dated August 30, 1997, a Third Amendment dated August
30, 1998, a Fourth Amendment dated August 30, 1999 and a Fifth Amendment dated
August 30, 2000 (collectively, the "Agreement"); and
B. the Borrower and the Bank desire to amend the Agreement as more fully
described herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms used herein without definition shall
have the respective meanings set forth in the Agreement.
2. AMENDMENTS TO THE AGREEMENT.
2.1 AMENDMENT TO THE FIRST "WHEREAS" CLAUSE OF THE AGREEMENT. The
first "WHEREAS" clause of the Agreement is hereby amended as of the date hereof
by deleting it in its entirety and replacing it with the following:
"WHEREAS, the Borrower desires to borrow from the Bank up to the sum of
FIFTY MILLION DOLLARS ($50,000,000) in order to support the Borrower's
working capital needs;"
2.2 AMENDMENT TO SECTION 1 OF THE AGREEMENT. Section 1 of the Agreement
is hereby amended as of the date hereof by deleting the figure "FORTY MILLION
DOLLARS ($40,000,000)" and substituting therefor the figure "FIFTY MILLION
DOLLARS ($50,000,000)".
2.3 AMENDMENT TO SECTION 3 OF THE AGREEMENT. Section 3 of the Agreement
is hereby amended as of the date hereof by deleting the figure "FORTY MILLION
DOLLARS ($40,000,000)" and substituting therefor the figure "FIFTY MILLION
DOLLARS ($50,000,000)".
2.4 AMENDMENT TO SECTION 3(a) OF THE AGREEMENT. Section 3(a) of the
Agreement is amended by deleting it in its entirety and inserting in lieu
thereof the following:
"(a) Interest accruing at the Prime Rate (hereinafter defined) on
amounts outstanding under the Note shall be payable quarterly, in arrears,
commencing on August 29, 2001 and continuing on each of the following days
thereafter November 29th, February 28th, May 29th and August 29th. A final
payment of all outstanding amounts due under the Note 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, 2004 (the "Maturity Date"). Accrued and unpaid interest on the
unpaid principal balance of all advances outstanding from time to time
which are LIBOR (hereinafter defined) advances shall be payable on the last
business day of each Interest Period (hereinafter defined), commencing on
the first such date to occur after the date hereof, on the date of any
principal repayment of a LIBOR advance and on the Maturity Date. The
amounts outstanding under the Note 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 125 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 the Bank, and
referred to by the Bank as its Prime Rate. The Borrower acknowledges that
the Prime Rate is not necessarily the Bank'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 the Bank.
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 the Bank
(rounded upward if necessary, to the nearest 1/16 of 1.00%) in the London
Interbank Eurodollar market at 11:00 a.m. (London time) two banking days
prior to the commencement of each Interest Period, such rate to remain
fixed for such Interest Period. The LIBOR rate for all LIBOR advances made
during an Interest Period shall be fixed at the LIBOR rate in effect for
the initial LIBOR advance with respect to such Interest Period and interest
on all such advances during the Interest Period shall be due and payable at
the expiration of such Interest Period. "Interest Period" shall mean
successive three month periods as selected from time to time by the
Borrower by notice given to the Bank not less than three banking days prior
to the first day of each respective Interest Period; provided that: (i)
each three month period occurring after such initial period shall commence
on the day on which the next preceding period expires; (ii) each Interest
Period shall be such that its expiration occurs on August 29, 2001 and
continuing on each of the following days thereafter November 29th,
2
February 28th, May 29th and August 29th and the final Interest Period shall
be such that its expiration occurs on or before the Maturity Date hereof;
and (iii) if for any reason the Borrower shall fail to select timely a
period, then it shall be deemed to have selected a period that expires on
the next occurring of the above dates. Interest shall be payable on the
last banking day of each Interest Period, commencing on the first such date
to occur after the date hereof, at maturity, after maturity on demand, and
on the date of any payment hereon on the amount paid. The Borrower hereby
further promises to pay to the order of the Bank, 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 rate in
effect at the time of maturity.
The Bank's determination of LIBOR as provided above shall be
conclusive, absent manifest error. Furthermore, if the Bank 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 the Bank 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, the Bank 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 guide-line 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 the Bank or its lending office (a "Regulatory Change"),
shall, in the opinion of counsel to the Bank, makes it unlawful for the
Bank to make or maintain any LIBOR Loan evidenced hereby, then the Bank
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
the Bank against any loss (including any loss on redeployment of the funds
repaid), cost or expense incurred by the Bank 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, the Bank; (b) subject the Bank or any
3
LIBOR Loan to any tax, duty, charge, stamp tax or fee or change the basis
of taxation of payments to the Bank of principal or interest due from the
Borrower to the Bank hereunder (other than a change in the taxation of the
overall net income of the Bank); or (c) impose on the Bank any other
condition regarding such LIBOR Loan or the Bank's funding thereof, and the
Bank shall determine (which determination shall be conclusive, absent
manifest error) that the result of the foregoing is to increase the cost to
the Bank of making or maintaining such LIBOR Loan or to reduce the amount
of principal or interest received by the Bank hereunder, then the Borrower
shall pay to the Bank, on demand, such additional amounts as the Bank
shall, from time to time, determine are sufficient to compensate and
indemnify the Bank for such increased cost or reduced amount."
2.5 REVOLVING NOTE. All references in the Loan Agreement to the
Revolving Note in the form of Exhibit "A" to the Loan Agreement shall be deemed
to be references to the Replacement Revolving Note in the form of Exhibit "A"
attached hereto and made a part hereof (the "Replacement Revolving Note").
3. WARRANTIES. To induce the Bank to enter into this Amendment, the
Borrower warrants that:
3.1 AUTHORIZATION. The Borrower is duly authorized to execute and
deliver this Amendment and is and will continue to be duly authorized to borrow
monies under the Agreement, as amended hereby, and to perform its obligations
under the Agreement, as amended hereby.
3.2 NO CONFLICTS. The execution and delivery of this Amendment and the
performance by the Borrower of its obligations under the Agreement, as amended
hereby, do not and will not conflict with any provision of law or of the charter
or by-laws of the Borrower or of any agreement binding upon the Borrower.
3.3 VALIDITY AND BINDING EFFECT. The Agreement, as amended hereby,
is a legal, valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency or other similar laws of general application
affecting the enforcement of creditors' rights or by general principles of
equity limiting the availability of equitable remedies.
3.4 NO DEFAULT. As of the date hereof, no Event of Default under
Section 9 of the Agreement, as amended by this Amendment, or event or condition
which, with the giving of notice or the passage of time, shall constitute an
Event of Default, has occurred or is continuing.
3.5 WARRANTIES. As of the date hereof, the representations and
warranties in Section 5 of the Agreement are true and correct as though made on
such date, except for such changes as are specifically permitted under the
Agreement.
4
4. CONDITIONS PRECEDENT. This Amendment shall become effective as of the
date above first written after receipt by the Bank of the following documents:
(a) This Amendment duly executed by the Borrower;
(b) A Replacement Revolving Note in the form attached hereto as
Exhibit A, duly executed by the Borrower;
(c) A Third Amendment to Pledge and Security Agreement;
(d) Such other documents and instruments as the Bank reasonably
requests.
5. GENERAL.
5.1 LAW. This Amendment shall be construed in accordance with and
governed by the laws of the State of Illinois.
5.2 SUCCESSORS. This Amendment shall be binding upon the Borrower and
the Bank and their respective successors and assigns, and shall inure to the
benefit of the Borrower and the Bank and their respective successors and
assigns.
5.3 CONFIRMATION OF THE AGREEMENT. Except as amended hereby, the
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects.
LASALLE BANK NATIONAL ASSOCIATION WINTRUST FINANCIAL CORPORATION
By: ____________________________ By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Its:____________________________ Its: Executive Vice President
and Chief Financial Officer
-------------------------------------
