FIFTH AMENDMENT TO
LOAN AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AGREEMENT dated as of August 30, 2000
(this "Amendment"), is between WINTRUST FINANCIAL CORPORATION, an Illinois
corporation (the "Borrower"), and LASALLE BANK NATIONAL ASSOCIATION, formerly
known as, LASALLE NATIONAL BANK, 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 and a Third Amendment dated August 30, 1999 (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 SECTION 3(A) OF THE AGREEMENT. Section 3(a)
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of the Agreement is amended by deleting the first paragraph of Section 3(a) 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 December 1, 2000 and continuing on the first day
of each March, June, September and December thereafter. 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 August 29, 2001 (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")."
2.2 AMENDMENT TO SECTION 7(E) Section 7(e) of the
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Agreement is amended by deleting it in its entirety and inserting the following
in lieu thereof:
"(e) Cause the Borrower, on a consolidated basis, to maintain
tangible equity capital of no less than $80,000,000. 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".
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
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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
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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
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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
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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
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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. 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;
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(b) A Replacement Revolving Note in the form attached
hereto as Exhibit A-5, duly executed by the Borrower;
(c) A Second Amendment to Pledge and Security Agreement;
(d) An Amended and Restated Collateral Safekeeping
Agreement; and
(e) Such other documents and instruments as the Bank
reasonably requests.
5. GENERAL.
5.1 LAW. This Amendment shall be construed in accordance
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with and governed by the laws of the State of Illinois.
5.2 SUCCESSORS. This Amendment shall be binding upon the
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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
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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
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Its: Its:Excutive Vice President & CFO
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EXHIBIT A-5 TO THE FIFTH AMENDMENT TO LOAN AGREEMENT
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REPLACEMENT REVOLVING NOTE
$40,000,000 Dated: August 30, 2000
FOR VALUE RECEIVED, WINTRUST FINANCIAL CORPORATION, an Illinois
corporation (the "Maker") promises to pay to the order of LASALLE BANK NATIONAL
ASSOCIATION, a national banking association (the "Bank") the lesser of: the
principal sum of FORTY MILLION DOLLARS ($40,000,000), or the aggregate unpaid
principal amount outstanding under the Loan Agreement dated August 30, 1996 (as
amended from time to time, the "Loan Agreement") between the Bank and the Maker
at the maturity or maturities and in the amount or amounts as stated on the
records of the Bank together with interest (computed on actual days elapsed on
the basis of a 360 day year) on any and all principal amounts outstanding
hereunder from time to time from the date hereof until maturity. Interest shall
be payable at the rates of interest and the times set forth in the Loan
Agreement. In no event shall any principal amount have a maturity later than
August 30, 2001.
This Note shall be available for direct advances.
Principal and interest shall be paid to the Bank at its office at 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other place as the
holder of this Note may designate in writing to the Maker. This Note may be
prepaid in whole or in part as provided for in the Loan Agreement.
This Note evidences indebtedness incurred under the Loan Agreement, to
which reference is hereby made for a statement of the terms and conditions under
which the due date of the Note or any payment thereon may be accelerated. The
holder of this Note is entitled to all of the benefits provided for in the Loan
Agreement.
The Maker agrees that in action or proceeding instituted to collect or
enforce collection of this Note, the amount on the Bank's records shall be
conclusive and binding evidence, absent demonstrable error, of the unpaid
principal balance of this Note.
This Note is in replacement and substitution of, but not repayment for,
a Revolving Note of the Borrower dated August 30, 1999 in the principal amount
of $40,000,000 and is in no way intended to constitute a novation therefor.
WINTRUST FINANCIAL CORPORATION
By:
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Its:
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