Amended and Restated Forward Stock Sale Confirmation between RBC Capital Markets Corporation (as Agent for Royal Bank of Canada) and Wintrust Financial Corporation
This agreement is between Royal Bank of Canada (through its agent, RBC Capital Markets Corporation) and Wintrust Financial Corporation. It confirms the terms of a forward stock sale transaction involving Wintrust’s common stock. The contract sets out the number of shares, pricing formula, settlement procedures, and key dates, including a maturity date of December 17, 2006. Both parties agree to the terms under the ISDA Master Agreement framework, with RBC Capital Markets acting solely as agent and not guaranteeing the transaction. The agreement amends and restates a previous confirmation, updating terms and conditions.
![]() | RBC Capital Markets Corporation One Liberty Plaza 2nd Floor 165 Broadway New York, NY 10006-1404 Telephone: (212)  ###-###-#### |
DATE | : | December 14, 2005 | ||
TO | : | Wintrust Financial Corporation (Party B) | ||
727 North Bank Lane | ||||
Lake Forest, IL 60045 | ||||
ATTN | : | David A. Dykstra, Sr. Executive V.P. & COO | ||
FAX | : | (847)  ###-###-#### | ||
TEL | : | (847)  ###-###-#### | ||
FROM | : | RBC CAPITAL MARKETS CORPORATION | ||
as agent for | ||||
ROYAL BANK OF CANADA (Party A) | ||||
FAX | : | (212)  ###-###-#### | ||
RBCCM REF | : | NY 5189 (Amended & Restated) | ||
RE | : | Confirmation of Forward Stock Sale on the Common Stock of Wintrust Financial Corporation |
Trade Date: | December 14, 2004 | |||
Effective Date: | December 17, 2004 | |||
Base Amount: | Initially, 1,200,000 Shares, subject to increase pursuant to the Overallotment Option. On each Settlement Date, the Base Amount shall be reduced by the number of Settlement Shares for such Settlement Date. Effective as of March 30, 2005, Base Amount shall be 200,000 Shares. | |||
Maturity Date: | Initially, December 17, 2005 but effective as of the Amended and Restated Confirmation Effective Date, Maturity Date shall be December 17, 2006 (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day); provided that if the Maturity Date is a Disrupted Day, then the Maturity Date shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day. |
Initial Forward Price: | USD55.93 per Share, (an amount which is equal to the public offering price less the underwriting discount). | |||
Forward Price: | On the Effective Date, the Initial Forward Price, and, on any other day, the Forward Price as of the immediately preceding calendar day multiplied by the sum of (i) 1 plus (ii) the Daily Rate for such day; provided that on each Forward Price Reduction Date, the Forward Price in effect on such date shall be the Forward Price otherwise in effect on such date minus the Forward Price Reduction Amount for such Forward Price Reduction Date. | |||
Daily Rate: | For any day, (i)(A) USD-Federal Funds Rate for such day minus (B) the Spread divided by (ii) 360. | |||
USD-Federal Funds Rate: | For any calendar day from and including the Effective Date through to and including the Maturity Date, the rate set forth for such day opposite the caption Federal funds, as such rate is displayed on the page FedsOpen <Index> <GO> on the BLOOMBERG Professional Service, or any successor page; provided that if no rate appears for any day on such page, the rate for the immediately preceding day for which a rate does so appear shall be used for such day. | |||
Spread: | 0.75%. | |||
Forward Price Reduction Date(s): | February 1, 2005, August 1, 2005, February 1, 2006 and August 1, 2006. | |||
Forward Price Reduction Amount: | For each Forward Price Reduction Date, the Forward Price Reduction Amount set forth opposite such date on Schedule I. | |||
Shares: | Common Stock, no par value per share, of Wintrust Financial Corporation (the Issuer) (Exchange identifier: | |||
WTFC). | ||||
Exchange: | NASDAQ National Market. | |||
Related Exchange(s): | All Exchanges. | |||
Clearance System: | DTCC. (formerly DTC) | |||
Calculation Agent: | RBCCM, which is an affiliate of RBC shall be the Calculation Agent, or any successor calculation agent thereto appointed by RBCCM. All determinations and calculations of the Calculation Agent shall be binding on the parties hereto in the absence of material manifest error. |
Settlement Date: | Any Scheduled Trading Day following the Effective Date and up to and including the Maturity Date, as designated by Party B in a written notice (a Settlement Notice) delivered to Party A at least (i) ten Scheduled Trading Days prior to such Settlement Date (Party A shall use reasonable efforts to accommodate a shorter Settlement Period), which may be the Maturity Date, if Physical Settlement applies, and (ii) 15 Scheduled Trading Days prior to such Settlement Date, which may be the Maturity Date, if Cash Settlement or Net Stock Settlement applies (the period from the giving of any such notice to the Settlement Date being the Cash/Net Stock Notice Period); provided that the Maturity Date shall be a Settlement Date if on such date the Base Amount is greater than zero. | |||
Settlement Shares: | With respect to any Settlement Date, a number of Shares, not to exceed the Base Amount, designated as such by Party B in the related Settlement Notice; provided that (i) Party B must designate as the Settlement Shares for each Settlement Date other than the Maturity Date a number of Shares equal to at least the lesser of (x) 100,000 and (y) the Base Amount on such date, and (ii) on the Maturity Date the number of Settlement Shares shall be equal to the Base Amount on such date. | |||
Settlement: | Physical Settlement, Cash Settlement or Net Stock Settlement, at the election of Party B as set forth in the Settlement Notice; provided that Physical Settlement shall apply (i) if no settlement method is selected, (ii) a Suspension Period exists during the Cash/Net Stock Notice Period, but only to the extent that Party A has been unable as a result thereof to purchase Shares in an amount equal to the Settlement Shares prior to the Settlement Date and has provided notice to such effect to Party B, or (iii) a Stock Borrow Event or any of the events specified in paragraphs (b), (c) or (f) under Acceleration Events in this Confirmation has occurred. |
Physical Settlement: | On any Settlement Date in respect of which Party B has elected, or is deemed to have elected in whole or in part, Physical Settlement, Party B shall deliver to Party A a number of Shares equal to the Settlement Shares for which Physical Settlement applies on such Settlement Date, and Party A shall deliver to Party B, by wire transfer of immediately available funds to an account designated by Party B, an amount in cash equal to the Physical Settlement Amount for such Settlement Date, on a delivery versus payment basis. | |||
Physical Settlement Amount: | For any Settlement Date in respect of which Party B has elected, or is deemed to have elected, Physical Settlement, an amount in cash equal to the product of (i) the Forward Price on such Settlement Date, as the case may be, and (ii) the number of Settlement Shares for which Physical Settlement applies on such Settlement Date. | |||
Cash Settlement: | On any Settlement Date in respect of which Party B has elected Cash Settlement, if the Cash Settlement Amount is a positive number, Party A will pay the Cash Settlement Amount to Party B. If the Cash Settlement Amount is a negative number, Party B will pay the absolute value of the Cash Settlement Amount to Party A. Such amounts shall be paid on the Settlement Date. | |||
Cash Settlement Amount: | An amount determined by the Calculation Agent equal to: (i)(A) the Forward Price on such Settlement Date, as the case may be, minus (B) the average price of the Shares purchased by Party A in order to close-out its trading activities pursuant to the Transaction (the Close-out Shares), plus $0.02, multiplied by (ii) the Settlement Shares for which Cash Settlement or Net Stock Settlement applies on such Settlement Date. | |||
Net Stock Settlement: | On any Settlement Date in respect of which Party B has elected Net Stock Settlement, if the Cash Settlement Amount is a (i) positive number, Party A shall deliver a number of Shares to Party B equal to the Net Stock Settlement Shares, and (ii) negative number, Party B shall deliver a number of Shares to Party A equal to the Net Stock Settlement Shares. | |||
Net Stock Settlement Shares: | With respect to a Settlement Date, the absolute value of the Cash Settlement Amount divided by the fair market value per share of the Shares as determined by the Calculation Agent, with the number of Shares rounded up in the event such calculation results in a fractional number. | |||
Settlement Currency: | USD. |
Failure to Deliver: | Applicable. |
Net Stock Settlement:
Suspension Period: | Any day on which Party A determines based on the advice of counsel that Cash or Net Stock Settlement may violate Rules 10b-5 or 10b-18 of the Securities Exchange Act of 1934 (the Exchange Act), any applicable securities laws hereinafter enacted or a change in the interpretation of any existing applicable securities laws. Party A shall notify Party B if it receives such advice from its counsel. Notwithstanding any provision in this Agreement to the contrary, Physical Settlement shall apply if a Suspension Period exists during the Cash/Net Stock Notice Period, but only to the extent that Party A has been unable as a result thereof to purchase Shares in an amount equal to the Settlement Shares prior to the Settlement Date and has provided notice to such effect to Party B. |
Method of Adjustment: | Calculation Agent Adjustment. Notwithstanding anything in the Equity Definitions to the contrary, the Calculation Agent may make an adjustment pursuant to Calculation Agent Adjustment to any one or more of the Base Amount, the Forward Price and any other variable relevant to the settlement or payment terms of the Transaction. | |||
Additional Adjustment: | If, in Party As sole judgment, the actual cost to Party A, over any one month period, of borrowing a number of Shares equal to the Base Amount to hedge its exposure to the Transaction exceeds a weighted average rate equal to 75 basis points per annum, the Calculation Agent shall reduce the Forward Price in order to compensate Party A for the amount by which such cost exceeded a weighted average rate equal to 75 basis points per annum during such period. The Calculation Agent shall notify Party B prior to making any such adjustment to the Forward Price and, upon the request of Party B, Party A shall provide an itemized list of its stock loan costs for the applicable one month period. |
(a) Consequences of Merger Events: | ||||
Share-for-Share: | Cancellation and Payment. | |||
Share-for-Other: | Cancellation and Payment. | |||
Share-for-Combined: | Cancellation and Payment. | |||
(b) Nationalization, Insolvency or Delisting: | Cancellation and Payment. |
Delisting: | The definition of Delisting in Section 12.6 of the Equity Definitions shall be deleted in its entirety and replaced with the following: Delisting means that the Exchange announces that pursuant to the rules of such Exchange, the Shares cease (or will cease) to be listed, traded or publicly quoted on the Exchange for any reason (other than a Merger Event or Tender Offer) and are not immediately re-listed, re-traded or re-quoted on the New York Stock Exchange, the American Stock Exchange or the NASDAQ NMS. |
(c) Tender Offer: | Applicable. |
Share-for-Share: | Cancellation and Payment. | |||
Share-for-Other: | Cancellation and Payment. | |||
Share-for-Combined: | Cancellation and Payment. | |||
New Shares: | The definition of New Shares in Section 12.1 of the Equity Definitions shall be amended by deleting subsection (i) in its entirety and replacing it with the following: (i) publicly quoted, traded or listed on the New York Stock Exchange, the American Stock Exchange or the NASDAQ NMS and. |
Payments to Party A: | To be advised under separate cover or telephone confirmed prior to each Payment Date. | |||
Payments to Party B: | To be advised under separate cover or telephone confirmed prior to each Payment Date. | |||
Delivery of Shares to Party A: | To be advised. |
(a) | Any Shares, when issued and delivered in accordance with the terms of the Transaction, will be duly authorized and validly issued, fully paid and nonassessable, and the issuance thereof will not be subject to any preemptive or similar rights. |
(b) | Party B has reserved and will keep available, free from preemptive rights, out of its authorized but unissued Shares, solely for the purpose of issuance upon settlement of the Transaction as herein provided, the full number of Shares as shall then be issuable upon Physical Settlement of the Transaction. All Shares so issuable shall, upon such issuance, be accepted for listing on the Exchange. | ||
(c) | Party B is not insolvent, nor will Party B be rendered insolvent as a result of the Transaction. | ||
(d) | After giving notice of its intent to elect Cash Settlement or Net Stock Settlement, neither Party B nor any of its affiliates shall take any action that would cause any purchases of Shares in connection with any such Cash Settlement or Net Stock Settlement of the Transaction not to comply with Rule 10b-18 under the Exchange Act. | ||
(e) | Party B is an eligible contract participant (as such term is defined in Section 1(a)(12) of the Commodity Exchange Act, as amended). | ||
(f) | Party B agrees not to repurchase any Shares if, immediately following such repurchase, the Base Amount would be equal to or greater than 8% of the number of then-outstanding Shares. | ||
(g) | Party B agrees to provide Party A at least 30 days written notice (an Issuer Repurchase Notice) prior to executing any repurchase of Shares by Party B or any of its subsidiaries, whether out of profits or capital or whether the consideration for such repurchase is cash, securities or otherwise (an Issuer Repurchase), that alone or in the aggregate would result in the Base Amount Percentage (as defined below) being (i) equal to or greater than 7% of the outstanding Shares and (ii) greater by 0.5% or more than the Base Amount Percentage at the time of the immediately preceding Issuer Repurchase Notice (or in the case of the first such Issuer Repurchase Notice, greater than the Base Amount Percentage as of the date hereof). The Base Amount Percentage as of any day is the fraction (1) the numerator of which is the Base Amount and (2) the denominator of which is the number of Shares outstanding on such day. | ||
(h) | No filing with, or approval, authorization, consent, license registration, qualification, order or decree of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the execution, delivery and performance by Party B of this Confirmation and the consummation of the Transaction (including, without limitation, the issuance and delivery of Shares on any Settlement Date) except (i) such as have been obtained under the Securities Act, and (ii) as may be required to be obtained under state securities laws. | ||
(i) | In addition to any other requirements set forth herein, Party B agrees not to elect Cash Settlement or Net Stock Settlement if such settlement would result in a violation of the U.S. federal securities laws or any other federal or state law or regulation applicable to Party B. |
(j) | Party B is not entering into the Transaction on behalf of or for the accounts of any other person or entity, and will not transfer or assign its obligations under the Transaction or any portion of such obligations to any other person or entity except in compliance with applicable laws and the terms of the Transaction. | ||
(k) | Party B represents that any Registration Statement (as defined below), for purposes of facilitating Party As hedging of the Transaction, at the time the same becomes effective, will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Party B represents that any prospectus delivered to Party A in connection with sales made under the Registration Statement (as such prospectus may be supplemented from time to time) will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. | ||
(l) | Neither Party A nor any of its affiliates has advised Party B with respect to any legal, regulatory, tax, accounting or economic consequences arising from the Transaction, and neither Party A nor any of its affiliates is acting as agent (other than RBCCM as dual agent if specified above), or advisor for Party B in connection with the Transaction. | ||
(m) | Each of Party Bs required filings under all applicable securities laws have been filed and that, as of the respective dates thereof, such filings did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. | ||
(n) | Party B is not entering into the Transaction to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares), to manipulate the price of the Shares (or any security convertible into or exchangeable for Shares). | ||
(o) | Party B has not entered into any obligation that would contractually limit it from effecting Physical Settlement, Net Share Settlement or Cash Settlement under the Transaction and it agrees not to enter into any such obligation during the term of the Transaction. |
(a) | A registration statement (Registration Statement), which may be a shelf registration statement filed pursuant to Rule 415 under the Securities Act of 1933 (the Securities Act), covering public resale of at least the number of Shares to be purchased by Party A shall have been filed with, and declared effective by, the Securities and Exchange Commission no later than one Scheduled Trading Day prior to the Trade Date and such Registration Statement shall continue to be in effect at all times to and including the date that Party A or its affiliate(s) has fully and completely established its hedge. |
(b) | The contents of such Registration Statement and of any prospectus supplement to the prospectus included therein (including, without limitation, any sections describing the plan of distribution) shall be reasonably satisfactory to Party A. | ||
(c) | Party A shall have been afforded a reasonable opportunity to conduct a due diligence investigation with respect to Party B customary in scope for transactions pursuant to which Party A acts as an underwriter of equity securities and the results of such investigation are satisfactory to Party A, in its discretion, and | ||
(d) | As of the Trade Date, the Underwriting Agreement shall have been entered into with Party A in connection with the public resale by Party A of the Shares comprising Party As hedge. |
(a) | in connection with bids and purchases of Shares in connection with the Transaction, Party A shall comply, or cause compliance, with the timing and volume provisions of Rule 10b-18(b)(2) and (4) under the Exchange Act as if such provisions were applicable to such bids and purchases; | ||
(b) | in connection with bids and purchases of Shares in connection with the Transaction, Party A shall use its best efforts to comply, or cause compliance, with the price provisions of Rule 10b-18(b)(3) under the Exchange Act; provided, however, that Party A shall not be obligated to comply with clauses (a) and (b) above in the event and only to the extent that Party A is required to purchase any Shares as a result of an Acceleration Event (as hereinafter defined). |
(a) | Stock Borrow Event. Notwithstanding any other provision hereof, if, in the judgment of the Calculation Agent, Party A is unable to hedge its exposure to the Transaction because (i) of the lack of sufficient Shares being made available for Share borrowing by lenders or (ii) it is otherwise commercially impracticable or economically unfeasible, including, without limitation, in connection with Merger Events, Tender Offers, partial tender offers or similar transactions (each of (i) and (ii), a Stock Borrow Event), then Party A shall have the right to designate any Scheduled Trading Day to be a Settlement Date on at least two Scheduled Trading Days notice, and to select the number of Settlement Shares for such Settlement Date; provided that the number of Settlement Shares for any Settlement Date so designated by Party A shall not exceed the number of Shares as to which such inability exists, and provided further that Physical Settlement shall apply at the Forward Price. | ||
(b) | Stock Price. Notwithstanding any other provision hereof, if the closing sale price per Share on the Exchange for the regular trading session on any Exchange Business Day occurring after the Trade Date is less than or equal to $30.00, Party A shall have the right to designate any Scheduled Trading Day to be a Settlement Date on at least three Scheduled Trading Days notice, and to select the number of Settlement Shares for such Settlement Date. Upon the designation of such Settlement Date, Physical Settlement shall apply. | ||
(c) | Dividends and Other Distributions. Notwithstanding anything to the contrary herein contained, in the Agreement or in the Definitions, if on any day after the Trade Date, Party B declares a distribution, issue or dividend to existing holders of the Shares of (i) an extraordinary cash dividend (which shall include any cash dividend other than regular semi-annual cash dividends of $0.12 or less in 2005 per Share payable in February 2005 and August 2005 and $0.14 or less in 2006 per Share payable in February 2006 and August 2006), (ii) a regular semi-annual dividend in an amount greater than $0.12 in 2005 per Share per semi-annual period and greater than $0.14 in 2006 per Share per semi-annual periodor (iii) any other type of securities (other than Shares, which may constitute a Potential Adjustment Event), rights or warrants or other assets, in any case for payment (cash or other consideration) at less than the prevailing market price as determined by Party A, then Party A shall have the right to designate any Scheduled Trading Day to be a Settlement Date for the entire Transaction on at least one Scheduled Trading Days notice. Upon the designation of such Settlement Date, Physical Settlement shall apply. | ||
(d) | Board Approval of Merger. Notwithstanding any other provision hereof, if on any day occurring after the Trade Date the board of directors of Party B votes to approve any action that, if consummated, would constitute a Merger Event (as defined in the Equity Definitions), then Party A shall have the right to designate any Scheduled Trading Day to be a Settlement Date for the entire Transaction on at least three Scheduled Trading Days notice. Party B shall notify Party A of any |
such vote within one Scheduled Trading Day and upon the designation of such Settlement Date, Party B shall promptly notify Party A of the settlement method, provided that if Party B fails to do so, Physical Settlement shall apply. | |||
(e) | Agreement Early Termination Date. Notwithstanding anything to the contrary herein, in the Agreement or in the Definitions, if either Party A or Party B has the right to designate an Early Termination Date pursuant to Section 6 of the Agreement, such party shall have the right to designate any Scheduled Trading Day to be a Settlement Date for the entire Transaction on at least three Scheduled Trading Days notice. Upon the designation of such Settlement Date, Party B shall promptly notify Party A of the settlement method, provided that if Party B fails to do so, Physical Settlement shall apply. | ||
(f) | Other Events. Notwithstanding anything to the contrary herein, in the Agreement or in the Definitions, if a Nationalization, Insolvency, Insolvency Filing, Delisting or Change in Law occurs, Party A shall have the right to designate any Scheduled Trading Day to be a Settlement Date for the entire Transaction on at least three Scheduled Trading Days notice, and Party A shall be the Determining Party. Upon the designation of such Settlement Date, Physical Settlement shall apply. |
(a) | As a broker-dealer registered with the U.S. Securities and Exchange Commission, RBCCM, in its capacity as agent (the Agent), will be responsible for (i) effecting the Transaction, (ii) issuing all required confirmations and statements to Party A and Party B and (iii) maintaining books and records relating to the Transaction. | ||
(b) | RBCCM shall act as agent for Party A and Party B within the meaning of Rule 15a-6 under the Exchange Act in connection with the Transaction. | ||
(c) | The Agent, in its capacity as such, shall have no responsibility or liability (including, without limitation, by way of guarantee, endorsement or otherwise) to Party A or Party B or otherwise in respect of the Transaction, including, without limitation, in respect of the failure of Party A or Party B to pay or perform under this Confirmation, except for its gross negligence or willful misconduct in performing its duties as Agent hereunder. | ||
(d) | Each of Party A and Party B agree to proceed solely against the other to collect or recover any securities or monies owing to Party A or Party B, as the case may be, in connection with or as a result of the Transaction. | ||
(e) | The Agent will be Party As agent for service of process for the purpose of Section 13(c) of the Agreement. |
Non-Reliance: | Applicable | |
Additional Acknowledgements: | Applicable |
Account Details for Party A: | Chase Manhattan Bank, New York | |
ABA 021-000-021 | ||
A/C# 920-1-033363 | ||
Ref: US Transit 1267 A/C ###-###-#### | ||
RBCCM REF: NY-5189 Amended & Restated | ||
Account Details for Party B: | Lake Forest Bank & Trust | |
Lake Forest, Illinois | ||
ABA No. 0719-25334 | ||
Acct. No. 180130 | ||
Ref: Wintrust Financial Corporation |
Attention: Director, Independent Middle Office
One Liberty Plaza 2nd Floor
165 Broadway
New York, New York 10006-1404 U.S.A.
Facsimile No.: (212)  ###-###-####
Attention: David A. Dykstra, Sr. Executive V.P. & COO
727 North Bank Lane
Lake Forest, Illinois 60045 U.S.A.
Facsimile No.: (847)  ###-###-####
Section 5(a)(v): | None | |
Section 5(a)(vi): | None | |
Section 5(a)(vii): | None | |
Section 5(b)(iv): | None |
Section 5(a)(v): | any Affiliate of Party B | |
Section 5(a)(vi): | any Affiliate of Party B |
Section 5(a)(vii): | any Affiliate of Party B | |
Section 5(b)(iv): | any Affiliate of Party B |
(a) | For the purpose of Section 3(e) of the Agreement, each party represents to the other party that it is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest under Section 2(d), 6(d)(ii), or 6(e) of the Agreement) to be made by it to the other party under the Agreement. In making this representation, each party may rely on (i) the accuracy of any representations made by the other party pursuant to Section 3(f) of the Agreement, (ii) the satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of the Agreement, and the accuracy and effectiveness of any document provided by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of the Agreement, and (iii) the satisfaction of the agreement of the other party contained in Section 4(d) of the Agreement; provided that it will not be a breach of this representation where reliance is placed on clause (ii) above and the other party does not deliver a form or document under Section 4(a)(iii) of the Agreement by reason of material prejudice to its legal or commercial position. |
(II) | For the purpose of Section 3(f) of the Agreement, each party makes the following representations to the other party: |
(i) | Party A represents that (i) it a bank organized under the laws of Canada and (ii) it is a foreign corporation for U.S. federal tax purposes. | ||
In respect of a Transaction the income from which is attributable to its New York office, each payment received or to be received by it in connection with this Agreement will be effectively connected with its conduct of a trade or business in the United States. | |||
(ii) | Party B represents that it is a corporation incorporated under the laws of Illinois and (ii) it is a U.S. person for U.S. federal tax purposes. |
Party Required to | Document Required | Covered by Section | ||||
Deliver Document | to be Delivered | When Required | 3(d) Representation | |||
Party A and Party B | Evidence of the authority and true signatures of each official or representative signing this Confirmation | Upon or before execution and delivery of this Confirmation | Yes | |||
Party B | Certified copy of the resolution of the Board of Directors or equivalent document authorizing the Transaction | Upon or before execution and delivery of this Confirmation | Yes |
Party Required to | Document Required | Covered by Section | ||||
Deliver Document | to be Delivered | When Required | 3(d) Representation | |||
Party A | With respect to any payments described in this Confirmation, U.S. Internal Revenue Service Form W-8ECI (or any successor of such Form), completed accurately and in a manner reasonably acceptable to party B | (1) Before the first payment date under this Agreement (2) before December 31 of each third succeeding calendar year, (3) promptly upon the earlier of reasonable demand by Party B and learning that any such Form is required, (4) prior to the expiration or obsolescence of any previously delivered Form, and (5) promptly upon the information on any such previously delivered Form becoming inaccurate or incorrect | Yes | |||
Party B | U.S. Internal Revenue Service Form W-9 (or any successor of such Form), completed accurately and in a manner reasonably acceptable to Party A | (1) Before the first payment date under this Agreement (2) promptly upon the earlier of reasonable demand by Party A and learning that any such Form is required, (3) prior to the expiration or obsolescence of any previously delivered Form, and (4) promptly upon the information on any such previously delivered Form becoming inaccurate or incorrect | Yes |
Attention: General Counsel, Law Department
One Liberty Plaza 5th Floor
165 Broadway
New York, New York 10006-1404 U.S.A.
Telephone No.: 212 ###-###-####
(a) | the Transaction to be a securities contract as defined in Section 741(7) of Title 11 of the United States Code (the Bankruptcy Code), qualifying for the protections under Section 555 of the Bankruptcy Code; | ||
(b) | a partys right to liquidate the Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the Agreement with respect to the other party to constitute a contractual right as defined in Section 560 of the Bankruptcy Code; | ||
(c) | any cash, securities or other property provided as performance assurance, credit, support or collateral with respect to the Transaction to constitute margin payments as defined in the Bankruptcy Code; and | ||
(d) | all payments for, under or in connection with the Transaction, all payments for the Shares and the transfer of such Shares to constitute settlement payments as defined in the Bankruptcy Code. |
Sincerely yours, | ||||
ROYAL BANK OF CANADA | ||||
by its agent | ||||
RBC Capital Markets Corporation | ||||
By: | /s/ Dawn T. Laabs | |||
Name: Dawn T. Laabs | ||||
Title: Vice President | ||||
Accepted and confirmed as of | ||||
the date first above written: | ||||
WINTRUST FINANCIAL CORPORATION | ||||
By: | /s/ David A. Dykstra | |||
Authorized Signatory | ||||
Name: David A. Dykstra | ||||
Title: Senior Executive Vice President and Chief Operating Officer |
Forward Price | ||||
Reduction Amount | ||||
Date | in USD | |||
Trade Date | $ | 0.00 | ||
February 1, 2005 | $ | 0.12 | ||
August 1, 2005 | $ | 0.12 | ||
February 1, 2006 | $ | 0.14 | ||
August 1, 2006 | $ | 0.14 | ||
Maturity Date | $ | 0.00 |