TERM NOTE
$1,200,000.00 Lake Forest, Illinois
January 31, 2000
FOR VALUE RECEIVED, Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx (hereinafter
referred to as "Borrowers"), hereby promise to pay to the order of Wintrust
Financial Corporation, an Illinois banking company, (hereinafter referred to as
"Lender") or its successors and assigns ("Holder"), the principal sum of One
Million Two Hundred Thousand Dollars ($1,200,000.00) ("Loan"), at the place and
in the manner hereinafter provided, together with interest thereon at the rate
described below.
Unless otherwise accelerated as provided herein, the principal balance
of the Note shall be due and payable on January 31, 2005 (the "Maturity Date").
The principal balance of the Note shall bear interest prior to the Maturity Date
at an annual rate of 7%, compounded annually. Interest not paid on or before
each anniversary date of the date of this Note occurring prior to the Maturity
Date shall be added to the outstanding principal balance of the Note. All
accrued but unpaid interest shall be due and payable on the Maturity Date. The
principal balance outstanding and all unpaid but accrued interest after the
Maturity Date shall bear interest at an annual rate of 8% per annum compounded
annually.
This Note is secured by a pledge of 100,000 shares of the stock of
Wintrust Financial Corporation owned by Xxxxxxx X. Xxxxxx. During the existence
of any default or delinquency under the terms of this Note or under the terms of
any instrument executed or to be executed as security for the payment hereof
including the Stock Pledge Agreement dated January 31, 2000 (the "Pledge
Agreement") between the Borrowers and the Lender, Lender or any Holder, is
expressly authorized to apply all payments made on this Note to the payment of
such part of any delinquency as it may elect.
The following shall constitute events of default:
(a) Xxxxxxx X. Xxxxxx breaches or is in breach of any
representation, warranty or covenant contained in the Pledge
Agreement and such breach is not cured within 45 days after
written notice from the Holder.
(b) Xxxxxx X. Xxxxxx terminates or is terminated from the employ
of Lender for any reason and has failed to pay all outstanding
principal and accrued interest within 90 days of the date of
such termination.
(c) Xxxxxxx X. Xxxxxx sells or attempts to sell all or any portion
of the Pledged Stock, or such Pledged Stock is subject to any
involuntary sale initiated by a creditor of either Xxxxxxxx.
Upon the occurrence of an event by default, the Lender or the Holder
may declare the principal balance and all accrued but unpaid interest
immediately due and payable, in which case the declaration date shall be the
Maturity Date.
The Borrowers may from time to time prepay the principal sum due under
this Note and any accrued and unpaid interest in whole or in part, without
penalty; provided, however, that such prepayment shall first be applied against
accrued interest and thereafter against said principal sum.
Borrowers represent and warrant that this Note is being incurred
primarily for a business purpose and does not consist of or involve any credit
offered or extended to a consumer primarily for personal, family or household
purposes.
Borrowers and all endorsers, guarantors and all persons liable or to
become liable under this Note hereby waive presentment, demand, protest, notice
of protest and notice of any other kind in connection with this Note.
All payments of principal and interest on this Note shall be payable at
the offices of Lender in Lake Forest, Illinois, or at such other place or
address as Lender or Holder may designate in writing. If this Note is placed in
the hands of an attorney at law for collection by reason of default on the part
of Borrowers, Borrowers hereby agree to pay to Lender or Holder in addition to
the sums stated above, the costs of collection, including attorney's fees and
expenses.
The obligations of the Borrowers on this Note shall be joint and
several.
This Note may not be changed, amended or modified orally.
This Note shall be construed in accordance with and governed by the
internal laws of the State of Illinois (without giving effect to Illinois choice
of law principles).
The rights and remedies of the Lender and Holder hereunder are
cumulative and not exclusive of any rights or remedies which the Lender and
Holder would otherwise have. Any waiver, permit, consent or approval of any kind
or character on the part of the Lender or Holder of any breach or default
hereunder or any such waiver of any provision or breach or default hereunder or
any such waiver of any provision or condition of this Note must be in writing
and shall be effective only to the extent specifically set forth in such
writing. No notice to or demand to Borrowers in any case shall entitle it to any
other or further notice or demand in other similar circumstances.
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
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STOCK PLEDGE AGREEMENT
----------------------
This STOCK PLEDGE AGREEMENT ("Agreement") is made and entered into as
of the 31st day of January, 2000 by and between XXXXXXX X. XXXXXX ("Pledgor")
and WINTRUST FINANCIAL CORPORATION, an Illinois banking company ("Pledgee").
PRELIMINARY STATEMENT
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A. Pledgor owns 100,000 shares of common stock of Wintrust Financial
Corporation, (the "Securities").
B. Pledgor is co-borrower on a loan made to Pledgee and her husband,
XXXXXX X. XXXXXX, in the amount of $1,200,000.00, which amount is evidenced by
that certain Term Note dated January 31, 2000 (the "Note").
C. The Pledgor has agreed to pledge the Securities as required
hereunder.
D. To facilitate and perfect the Pledge, the Securities shall be
deposited with Pledgee and Pledgee shall hold the Securities subject to the
terms hereof.
NOW, THEREFORE, in consideration of the premises set forth herein, it
is hereby agreed as follows:
1. Collateral. The term "Collateral" shall mean the Securities and all
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dividends, distributions and other amounts or additional securities to which
Pledgor (with or without additional consideration) is or becomes entitled by
virtue of its ownership of any of the Securities or as the result of any
corporate reorganization, merger, consolidation, stock split, stock dividend,
conversion, preemptive right or otherwise, and the proceeds thereof.
2. Deposit of Collateral. To secure payment of Pledgor's obligations
---------------------
under the Note, Pledgor hereby pledges and deposits the Securities with Pledgee
and hereby grants to Pledgee a valid and perfected first lien on and security
interest in the Securities and other items of the Collateral.
3. Representations, Warranties and Covenants. Pledgor hereby represents
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and warrants to Pledgee that as to the Collateral deposited by such Pledgor with
Pledgee on the date hereof, (i) Pledgor is the legal and beneficial owner of
such Collateral; (ii) such Collateral is validly issued, fully paid and
non-assessable and is registered in the name of Pledgor (iii) the pledge of
Collateral pursuant to the terms of this Pledge Agreement, together with
delivery thereof, creates a valid and perfected first lien on and security
interest in such Collateral in favor of Pledgee; (iv) the assignments separate
from certificate attached to the certificates representing such Collateral have
been duly executed and delivered by such Pledgor to Pledgee; (v) none of
such Collateral is subject to any lien; except for the perfected first security
interest granted to
Pledgee hereby and, so long as any portion of the Note remains unpaid, Pledgor
will not create or permit to exist any other lien or security interest upon or
with respect to such Collateral without the consent of Pledgee, (vi) Pledgor
will not sell, transfer, convey, assign, or otherwise divest its interests in
such Collateral, or any part thereof, to any other person.
4. Stock Splits, Stock Dividends, Etc.
-----------------------------------
4.1 Pledgor agrees that if by virtue of Xxxxxxx's ownership of
the Collateral, Pledgor becomes entitled to other or additional
securities as the result of any corporate reorganization, merger,
consolidation, stock split, stock dividend, conversion or otherwise,
such Pledgor shall:
4.1.1 Cause the issuer of such additional securities
to deliver to Pledgee the certificates evidencing Xxxxxxx's
ownership thereof and hereby authorizes and empowers Pledgee
to demand the same from such issuer, and agrees if such
certificates are delivered to Pledgor, to take possession
thereof in trust for Pledgee;
4.1.2 Deliver to Pledgee an assignment separate from
certificates with respect to such securities, executed in
blank by Xxxxxxx;
4.1.3 Deliver to Pledgee such other certificates,
forms and other instruments as Pledgee may request in
connection with such pledge.
4.2 Pledgor agrees that such additional securities shall
constitute a portion of the Collateral and be subject to this Pledge
Agreement in the same manner and to the same extent as the securities
pledged hereby to Pledgee on the date hereof.
5. Voting Power. Unless and until an event of default shall have
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occurred and shall not have been cured within ninety (90) days after notice,
Pledgor shall be entitled to exercise all voting powers in all corporate matters
pertaining to the Collateral for any purpose not inconsistent with, or in
violation of, the provisions of the Note.
6. Default and Remedies.
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6.1.1 Declare all principal and interest then due on the
Note immediately due and payable, subject to any cure
and notice provisions required by law, without
notice.
6.1.2 Collect all Collateral not then in Pledgee's
possession, and at Pledgee's option and to the extent
permitted by applicable law, retain possession of the
Collateral while suing on the Note.
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6.1.3 Sell the Collateral, at Pledgee's direction, in whole
or in portions thereof, at any private sale or on the
public market upon which such Collateral if regularly
traded. Pledgee agrees to give Pledgor at least ten
days prior written notice of any proposed private
sale or auction of the Collateral and three business
days advance notice of any sale on the public market
unless Pledgee, in its sole discretion, reasonably
believes that value of such Collateral would be
likely to decline if such notice was given. The
notice requirement will be satisfied if Pledgee mails
such notice to Pledgor by first class mail to the
last address given by Pledgor to Pledgee.
6.1.4 Pledgee shall be entitled to exercise all voting
powers pertaining to the Collateral.
With respect to the actions described in each of subsections 6.1.3 and 6.1.4
above, Pledgor hereby irrevocably constitutes and appoints Pledgee his proxy and
attorney-in-fact with full power of substitution and acknowledges that the
constitution and appointment of such proxy and attorney-in-fact are coupled with
an interest and are irrevocable.
6.2 At any sale made pursuant to Section 6.1 above,
Pledgee may bid for and purchase, any part or all of the Collateral that is
offered for sale.
6.3 Pledgee shall apply the proceeds of any sale of the
whole or any part of the Collateral and any other monies at the time held by
Pledgee under the provisions of this Agreement:
First, to reimburse Pledgee for its expenses in connection with the
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collection and sale of the Collateral and legal proceedings in suing on the
Note, including reasonable attorneys fees, court costs of securities
registration, brokers commissions and other costs of sale;
Second, to the payment of all principal and interest due on the Note;
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and
Third, any excess funds to the Pledgor. The Pledgor remains jointly and
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severally liable with her co-borrower for any deficiency on the Note.
6.4 Pledgee shall not have any duty to exercise any of the
rights, privileges, options or powers or to sell or otherwise realize upon any
of the Collateral, as hereinbefore authorized, and Pledgee shall not be
responsible for any failure to do so or delay in so doing.
6.5 Any sale of all or any portion of the Collateral pursuant
to Section 6.1 above shall operate to divest all right, title and interest of
the Pledgor to the Collateral which is the subject of any such sale.
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7. Pledgee's Obligations, Custodial Agreement, Performance Rights,
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Pledge Does Not Make Pledgee Shareholder. Pledgee shall not have any duty to
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protect, preserve or enforce
rights against the Collateral other than a duty of reasonable custodial care of
any such Collateral in its possession, it being understood that Pledgee shall
have no responsibility for (A) ascertaining or taking action with respect to
calls, conversions, exchanges, maturities, tenders or other matters relating to
the Collateral, whether or not Pledgee has or is deemed to have knowledge of
such matters, or (B) taking any necessary steps to preserve rights against any
parties with respect to the Collateral, or (C) making any capital contributions
or other payments on behalf of Pledgor with respect to the Collateral.
8. Termination of Pledge Agreement. Upon the payment and
-----------------------------------
performance in full of all of the Obligations and the Pledgee shall deliver to
the Pledgor the Collateral in its possession and this Pledge Agreement thereupon
shall be terminated.
9. Miscellaneous.
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9.1 Each and every right, remedy and power granted to Pledgee hereunder
shall be cumulative and in addition to any other right, remedy or power
specifically granted herein or now or hereafter existing in equity, at law, by
virtue of statute or otherwise and may be exercised by Pledgee, from time to
time, concurrently or independently and as often and in such order as Pledgee
may deem expedient. Any failure or delay on the part of Pledgee in exercising
any such right, remedy or power, or abandonment or discontinuance of steps to
enforce the same, shall not operate as a waiver thereof or affect Pledgee's
right thereafter to exercise the same, and any single or partial exercise of any
such right, remedy or power shall not preclude any other right, remedy or power,
and no such failure, delay, abandonment or single or partial exercise of
Pledgee's rights hereunder shall be deemed to establish a custom or course of
dealing or performance among the parties hereto.
9.2 Any modification or waiver of any provision of this Agreement, or
any consent to any departure by Pledgor therefrom, shall not be effective in any
event unless the same is in writing and signed by Pledgee, and then such
modification, waiver or consent shall be effective only in the specific instance
and for the specific purpose given. Any notice to or demand on Pledgor in any
event not specifically required of Pledgee hereunder shall not entitle Pledgor
to any other or further notice or demand in the same, similar or other
circumstances unless specifically required hereunder.
9.3 Pledgor agrees that at any time, and from time to time, after the
execution and delivery of this Agreement, Pledgor shall, upon the request of
Pledgee and at the expense of Pledgor, promptly execute and deliver such further
documents and do such further acts and things as Pledgee may request in order to
effect fully the purposes of this Agreement and to subject to the security
interest created hereby any property intended by the provisions hereof to be
covered hereby.
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9.4 Xxxxxxx agrees that it will warrant, preserve, maintain and defend,
at his own expense, the right, title and interest of Xxxxxxx in and to the
Collateral and all right, title and interest represented thereby against all
claims, charges and demands of all persons whomsoever.
9.5 All notices and communications under this Agreement shall be in
writing and shall be (i) delivered in person, (ii) sent by telecopy or
telegraph, or (iii) mailed, postage prepaid, either by registered or certified
mail, return receipt requested, or by overnight express carrier, addressed in
each case as follows:
If to Pledgor:
Xxxxxxx X. Xxxxxx
000 Xxxxx Xxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
If to Pledgee:
Wintrust Financial Corporation
000 Xxxxx Xxxx Xxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
provided, however, that any party may change its respective address for purposes
of receipt of any such communication by giving 10 days prior written notice of
such change to the other parties hereto in the manner provided above. All
notices sent pursuant to the terms of this Section 9.5 shall be deemed received
(i) if sent by telecopy or telegraph, on the day sent if a business day, or if
such day is not a business day, then on the next business day, (ii) if sent by
overnight, express carrier, on the next business day immediately following the
day sent, or (iii) if sent by registered or certified mail, on the third
business day following the day sent.
9.6 In the event that any provision of this Agreement is deemed to be
invalid by reason of the operation of any law, or by reason of the
interpretation placed thereon by any court, this Agreement shall be construed as
not containing such provision and the invalidity of such provision shall not
affect the validity of any other provision hereof, and any and all other
provisions hereof which otherwise are lawful and valid shall remain in full
force and effect.
9.7 This Agreement shall inure to the benefit of the successors and
assigns of Pledgee and shall be binding upon the heirs, legatees,
administrators, legal representatives, successors and assigns of Pledgor.
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9.9 This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
be one and the same instrument.
9.10 This Agreement shall be governed by the laws and decisions of the
State of Illinois.
IN WITNESS WHEREOF, the parties have executed this agreement as of the
date first above written.
Pledgor
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
Accepted By: Pledgee
WINTRUST FINANCIAL CORPORATION
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Its Executive Vice President
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