Exhibit 10.1
TERM NOTE
$500,000.00 Lake Forest, Illinois
January 31, 2002
FOR VALUE RECEIVED, David A. Dykstra (hereinafter referred to as the
"Borrower"), hereby promises 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 Five Hundred
Thousand Dollars ($500,000.00) ("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, 2007 (the "Maturity Date").
The principal balance of the Note shall bear interest prior to the Maturity Date
at the Wall Street Journal Prime Rate adjusted on the last day of each calendar
month with a maximum 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 15,000 shares of the stock of
Wintrust Financial Corporation owned by the Borrower. 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, 2002 (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) The Borrower 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) The Borrower 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) The Borrower 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 the Borrower.
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 Borrower 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.
Borrower represents and warrants 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.
Borrower 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 Borrower, Borrower hereby agrees to pay to Lender or Holder in addition to
the sums stated above, the costs of collection, including attorney's fees and
expenses.
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 Borrower in any case shall entitle it to any
other or further notice or demand in other similar circumstances.
/s/ David A. Dykstra
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David A. Dykstra
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STOCK PLEDGE AGREEMENT
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This STOCK PLEDGE AGREEMENT ("Agreement") is made and entered into as
of the 31st day of January, 2002 by and between DAVID A. DYKSTRA ("Pledgor") and
WINTRUST FINANCIAL CORPORATION, an Illinois banking company ("Pledgee").
PRELIMINARY STATEMENT
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A. Pledgor owns 15,000 shares of common stock of Wintrust Financial
Corporation, (the "Securities").
B. Pledgor is the borrower on a loan made by Pledgee, in the amount of
$500,000.00, which amount is evidenced by that certain Term Note dated January
31, 2002 (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
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
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.
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4.1 Pledgor agrees that if by virtue of Pledgor'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 Pledgor'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 Pledgor;
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
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 Upon an event of default as set forth in the Note, the
Pledgee may:
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.
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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.
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
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;
and
Third, any excess funds to the Pledgor.
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.
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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.
7. Pledgee's Obligations, Custodial Agreement, Performance Rights,
Pledge Does Not Make Pledgee Shareholder. Pledgee shall not have any duty to
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, 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
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subject to the security interest created hereby any property intended by the
provisions hereof to be covered hereby.
9.4 Pledgor agrees that it will warrant, preserve, maintain and defend,
at his own expense, the right, title and interest of Pledgee 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:
David A. Dykstra
P.O. Box 172
514 Shoshoni Trail
Lake Villa, Illinois 60046
If to Pledgee:
Wintrust Financial Corporation
727 North Bank Lane
Lake Forest, Illinois 60045
Attn: Edward J. Wehmer, President & CEO
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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9.8 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.
9.9 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/ David A. Dykstra
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David A. Dykstra
Accepted By: Pledgee
WINTRUST FINANCIAL CORPORATION
By /s/ Edward J. Wehmer
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Its President
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