Amended and Restated Confirmation

EX-10.1 2 c00847exv10w1.htm AMENDED AND RESTATED CONFIRMATION exv10w1

EXHIBIT 11.1



		RBC Capital Markets Corporation One Liberty Plaza – 2^nd 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

Disclosure of Agency Relationship

Royal Bank of Canada (“RBC” or the “Bank”) has appointed as its agent, its indirect wholly-owned subsidiary, RBC Capital Markets Corporation (“RBCCM”), for purposes of conducting on the Bank’s behalf, a business in privately negotiated transactions in options and other derivatives. You hereby are advised that RBC, the principal and stated counterparty in such transactions, duly has authorized RBCCM to market, structure, negotiate, document, price, execute and hedge transactions in over-the-counter derivative products. RBCCM has full, complete and unconditional authority to undertake such activities on behalf of RBC. RBCCM acts solely as agent and has no obligation, by way of issuance, endorsement, guarantee or otherwise with respect to the performance of either party under this transaction. This transaction is not insured or guaranteed by RBCCM.

CONFIRMATION

The purpose of this letter agreement is to confirm the terms and conditions of the transaction entered into between us on the Trade Date specified below (the “Transaction”), which are hereby amended and restated in their entirety effective as of December 14, 2005 (The Amended and Restated Confirmation Effective Date), as memorialized in this amended and restated confirmation dated December 14, 2005 (the “Amended and Restated

RBCCM Ref: NY-5189 (Amended & Restated)

Confirmation”). This Amended and Restated Confirmation constitutes a “Confirmation” as referred to in the Master Agreement specified below.

1. The definitions and provisions contained in the 2000 ISDA Definitions (the “Swap Definitions”) as published by the International Swaps and Derivatives Association, Inc. (“ISDA”) and in the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions” and, together with the Swap Definitions, the “Definitions”), as published by ISDA, are incorporated into this Confirmation. In the event of any inconsistency between either set of definitions and provisions and this Confirmation, this Confirmation will govern.

This Confirmation evidences a complete and binding agreement between Party A and Party B as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the 2002 ISDA Master Agreement (the “Agreement”) as if Party A and Party B had executed an agreement in such form with a Schedule thereto with the elections and variables set forth in Parts 4 and 5 of this Confirmation. In the event of any inconsistency between provisions of that Agreement and this Confirmation, this Confirmation will prevail for the purpose of the Transaction to which this Confirmation relates. The parties hereby agree that no Transaction other than the Transaction to which this Confirmation relates shall be governed by the Agreement.

Party A and Party B each represents to the other that it has entered into the Transaction in reliance upon such tax, accounting, regulatory, legal and financial advice as it deems necessary and not upon any view expressed by the other.

2. The terms of the particular Transaction to which this Confirmation relates are as follows:

General Terms:


		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.

RBCCM Ref: NY-5189 (Amended & Restated)


		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.

RBCCM Ref: NY-5189 (Amended & Restated)

Settlement Terms:


		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.

RBCCM Ref: NY-5189 (Amended & Restated)


		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.

RBCCM Ref: NY-5189 (Amended & Restated)


		Failure to Deliver:		Applicable.

Suspension of Cash or
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.

Adjustments:


		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 A’s 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.

RBCCM Ref: NY-5189 (Amended & Restated)

Extraordinary Events:


		(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.

Consequences of Tender Offer:


		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”.

Party A shall be the determining party in connection with all Extraordinary Events.

As provided hereinafter under “Acceleration Events,” upon the occurrence of the events specified in (d) and (e) thereof, Party B shall elect whether payment of the Cancellation Amount is to be effected by Physical Settlement, Net Share Settlement or Cash Settlement, provided that if Party B fails to do so, Physical Settlement shall apply.

RBCCM Ref: NY-5189 (Amended & Restated)

Additional Provisions:

If a Merger Date or Tender Offer Date is scheduled to be after the Settlement Date, the Calculation Agent will determine the economic effect on the theoretical value of the Transaction of the announcement of a potential Merger Event or Tender Offer Event (including without limitation any change in stock loan rate or liquidity relevant to the Shares or to the Transaction) from the Announcement Date to the Settlement Date. If such economic effect is material, the Calculation Agent will adjust the terms of the Transaction to reflect such economic effect.

Account Details:


		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.

3. Other Provisions:

Conditions to Effectiveness:

The effectiveness of this Confirmation on the Effective Date shall be subject to (i) the condition that the representations and warranties of Party B contained in the Underwriting Agreement, dated the date hereof (the “Underwriting Agreement”), among Party B, Party A and RBCCM, as agent to Party A and as representative of the several underwriters named therein, and any certificate delivered pursuant thereto by Party B be true and correct on the Effective Date as if made as of the Effective Date, (ii) the condition that Party B have performed all of the obligations required to be performed by it under the Underwriting Agreement on or prior to the Effective Date, (iii) the satisfaction of all of the conditions set forth in Section 7 of the Underwriting Agreement and (iv) the condition that the following has not occurred: Party A is unable to borrow and deliver for sale a number of Shares equal to the Base Amount or, in Party A’s sole judgment, either it is impracticable to do so or Party A would incur a stock loan cost of more than a rate equal to 75 basis points per annum to do so (in which event this Confirmation shall be effective but the Base Amount for the Transaction shall be reduced to the number of Shares Party A is required to deliver in accordance with Section 3 of the Underwriting Agreement).

Additional Representations, Warranties and Agreements of Party B: Party B hereby represents and warrants to, and agrees with, Party A as of the date hereof that:

(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.

RBCCM Ref: NY-5189 (Amended & Restated)

	(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.

RBCCM Ref: NY-5189 (Amended & Restated)

	(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 A’s 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 B’s 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.

Additional Provisions:

(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.

RBCCM Ref: NY-5189 (Amended & Restated)

	(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 A’s hedge.

Compliance with Securities Laws:

Party A represents and warrants as follows:

	(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).

Covenant of Party B:

The parties acknowledge and agree that any Shares delivered by Party B to Party A on any Settlement Date and returned by Party A to securities lenders from whom Party A borrowed Shares in connection with hedging its exposure to the Transaction will be freely saleable without further registration or other restrictions under the Securities Act in the hands of those securities lenders. Accordingly, Party B agrees that the Settlement Shares that it delivers to Party A on each Settlement Date will not bear a restrictive legend and that such Settlement Shares will be deposited in, and the delivery thereof shall be effected through the facilities of, the Clearance System.

Covenant of Party A:

Unless the provisions set forth below under “Private Placement Procedures” shall be applicable, Party A shall use any Shares delivered by Party B to Party A on any Settlement Date to return to securities lenders to close out open stock loans, if any, with respect to Shares.

RBCCM Ref: NY-5189 (Amended & Restated)

Acceleration Events: An Acceleration Event shall occur if:

	(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 Day’s 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

RBCCM Ref: NY-5189 (Amended & Restated)

			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.

Private Placement Procedures

If Party B is unable to comply with the provisions of “Covenant of Party B” above because of a change in law, or Party A otherwise determines that in its reasonable opinion any Shares to be delivered to Party A by Party B pursuant to Physical Settlement or Net Share Settlement may not be freely returned by Party A to securities lenders as described under “Covenant of Party B” above, then delivery of any such Shares (the “Restricted Shares”) shall be effected pursuant to this provision, unless waived by Party A.

If Party B delivers the Restricted Shares pursuant to this provision (a “Private Placement Settlement”), then delivery of Restricted Shares by Party B shall be effected in customary private placement procedures with respect to such Restricted Shares reasonably acceptable to Party A; provided that Party B may not elect a Private Placement Settlement if, on the date of its election, it has taken, or caused to be taken, any action that would make unavailable either the exemption pursuant to Section 4(2) of the Securities Act for the sale by Party B to Party A (or any affiliate designated by Party A) of the Restricted Shares or the exemption pursuant to Section 4(1) or Section 4(3) of the Securities Act for resales of the Restricted Shares by Party A (or any such affiliate of Party A). The Private Placement Settlement of such Restricted Shares shall include customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Party A, due diligence rights (for Party A or any designated buyer of the Restricted Shares by Party A), opinions and certificates, and such other documentation as is customary for private placement agreements, all reasonably acceptable to Party A. In the case of a Private Placement Settlement, Party A shall, in its sole discretion, adjust the amount of Restricted Shares to be delivered to Party A hereunder in a commercially reasonable manner to reflect the fact that such Restricted Shares may not be freely returned to securities lenders by Party A and may only be saleable by Party A at a discount to reflect the lack of liquidity in Restricted Shares. Notwithstanding the Agreement or this Confirmation, the date of delivery of

RBCCM Ref: NY-5189 (Amended & Restated)

such Restricted Shares shall be the Scheduled Trading Day following notice by Party A to Party B of the number of Restricted Shares to be delivered pursuant to this provision. For the avoidance of doubt, delivery of Restricted Shares shall be due as set forth in the previous sentence and not be due on the Settlement Date that would otherwise be applicable.

Transfer and Assignment:

Neither the Transaction, any interest or obligation in or under the Transaction may be transferred or assigned (whether by way of security or otherwise) by either party without the prior written consent of the other party, except that a party may make such a transfer of the Transaction pursuant to a consolidation or amalgamation with, or merger with or into, or transfer of all or substantially all of its assets to, another entity. Any purported transfer or assignment that is not in compliance with this paragraph shall be void.

Matters relating to Agent:

	(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 A’s agent for service of process for the purpose of Section 13(c) of the Agreement.

Maximum Share Delivery:

Notwithstanding any other provision of this Confirmation, in no event will Party B be required to deliver on any Settlement Date, whether pursuant to Physical Settlement, Net Stock Settlement, Cash Settlement or any Private Placement Settlement, more than 2,600,000 Shares to Party A.

RBCCM Ref: NY-5189 (Amended & Restated)

Limit on Beneficial Ownership:

Notwithstanding any other provisions hereof, Party A shall not be entitled to receive Shares hereunder (whether in connection with the purchase of Shares on any Settlement Date or otherwise) to the extent (but only to the extent) that such receipt would result in RBC directly or indirectly beneficially owning (as such term is defined for purposes of Section 13(d) of the Exchange Act) at any time in excess of 9.5% of the outstanding Shares. Any purported delivery hereunder shall be void and have no effect to the extent (but only to the extent) that such delivery would result RBC directly or indirectly so beneficially owning in excess of 9.5% of the outstanding Shares. If any delivery owed to Party A hereunder is not made, in whole or in part, as a result of this provision, Party B’s obligation to make such delivery shall not be extinguished and Party B shall make such delivery as promptly as practicable after, but in no event later than one Scheduled Trading Day after, Party A gives notice to Party B that such delivery would not result in RBC directly or indirectly so beneficially owning in excess of 9.5% of the outstanding Shares.

Miscellaneous:



Non-Reliance:		Applicable
Additional Acknowledgements:		Applicable

4. Agreement is further supplemented by the following provisions:

Share Settlement upon Certain Events:

Notwithstanding anything to the contrary herein, in the Agreement or in the Definitions, if at any time (i) an Early Termination Date occurs and Party B would be required to make a payment pursuant to Sections 6(d) and 6(e) of the Agreement, or (ii) a Merger Event occurs and Party B would be required to make a payment pursuant to Sections 12.2 and 12.7 of the Equity Definitions, then in lieu of any such payment, Party B at its election, may deliver to Party A, at the time such payment would have been due and in the manner provided under “Physical Settlement” in the Equity Definitions, a number of Shares (or, in the case of a Merger Event, common equity securities of the surviving entity) equal to the quotient obtained by dividing (A) the amount that would have been so payable by (B) the fair market value per Share (or per unit of such common equity security) of the Shares (or units) so delivered at the time of such delivery, as determined by the Calculation Agent (which fair market value shall take into account whether the Shares so delivered are freely tradeable). Upon Party B’s election to deliver Shares, the Transaction will not be considered for purposes of determining any Early Termination Amount under Section 6(e) of the Agreement.

Agreement Regarding Set-off:

Notwithstanding Section 6(f) or any other provision of the Agreement or any other agreement between the parties to the contrary, the obligations of Party B hereunder are not secured by any collateral. Obligations under the Transaction shall not be set off against any other obligations of

RBCCM Ref: NY-5189 (Amended & Restated)

the parties, whether arising under the Agreement, this Confirmation, under any other agreement between the parties hereto, by operation of law or otherwise, and no other obligations of the parties shall be set off against obligations under the Transaction, whether arising under the Agreement, this Confirmation, under any other agreement between the parties hereto, by operation of law or otherwise, and each party hereby waives any such right of set off. The last sentence of the first paragraph of Section 6(e) of the Agreement shall not apply with respect to the Transaction to the extent that any of the events described in Section 5(a)(vii) of the Agreement occurs with respect to Party B.

Bankruptcy Rights:

In the event of Party B’s bankruptcy, Party A acknowledges and agrees that this Confirmation is not intended to convey to it rights with respect to the Transaction that are senior to the claims of common stockholders; provided, however, that nothing herein shall limit or shall be deemed to limit Party A’s right to pursue remedies in the event of a breach by Party B of its obligations and agreements with respect to this Confirmation and the Agreement; and provided further, that nothing herein shall limit or be deemed to limit Party A’s rights in respect of any transaction other than the Transaction. For the avoidance of doubt, the parties acknowledge and agree that Party A’s rights with respect to any other claim arising from the Transaction prior to Party B’s bankruptcy shall remain in full force and effect and shall not be otherwise abridged or modified in connection herewith.

Account Information:


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

Party A address, telephone and facsimile number for purposes of giving notice:

Any notice or other communication required or permitted to be given to Party A (for matters other than operational matters) with respect to this Confirmation shall be delivered in person or given by facsimile transmission to Party A at the following address:

RBCCM Ref: NY-5189 (Amended & Restated)

RBC Capital Markets 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) ###-###-####

Any notice or other communication concerning operational matters should be sent by facsimile to RBC Capital Markets Corporation, at: Attention: Michael Borenstein; Phone: (212) ###-###-####; Fax: (212) ###-###-####.

Any notice or other communication required or permitted to be given Party B with respect to this Confirmation shall be delivered in person or given by facsimile transmission to Party B at the following address:

Wintrust Financial Corporation
Attention: David A. Dykstra, Sr. Executive V.P. & COO
727 North Bank Lane
Lake Forest, Illinois 60045 U.S.A.
Facsimile No.: (847) ###-###-####

Waiver of Right to Trial by Jury. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to this Confirmation or any Credit Support Document. Each party (i) certifies that no representative, agent or attorney of the other party has represented, expressly or otherwise, that such other party would not, in the event of such a suit action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party have been induced to enter into this Confirmation by, among other things, the mutual waivers and certifications in this Section.

5. ISDA Master Agreement

With respect to the Agreement, Party A and Party B each agree as follows:

Specified Entities:

(a) in relation to Party A, for the purposes of:


Section 5(a)(v):		None
Section 5(a)(vi):		None
Section 5(a)(vii):		None
Section 5(b)(iv):		None

and (b) in relation to Party B, for the purposes of:



Section 5(a)(v):		any Affiliate of Party B
Section 5(a)(vi):		any Affiliate of Party B

RBCCM Ref: NY-5189 (Amended & Restated)



Section 5(a)(vii):		any Affiliate of Party B
Section 5(b)(iv):		any Affiliate of Party B

“Specified Transaction” will have the meaning specified in Section 14 of the Agreement.

The “Cross Default” provisions of Section 5(a)(vi) of the Agreement will apply to Party A and to Party B.

“Specified Indebtedness” will have the meaning specified in Section 14 of the Agreement. If such provisions apply:- The “.” at the end of the definition of “Specified Indebtedness” in Section 14 of this Agreement shall be deleted and replaced by the following: “, except that such term shall not include obligations in respect of deposits received in the ordinary course of either party’s banking business, if any.”

“Threshold Amount” with respect to Party A means USD 50,000,000 (or the U.S. dollar equivalent in any other currency or currencies) and with respect to Party B means USD 10,000,000.

The “Credit Event Upon Merger” provisions of Section 5(b)(v) of the Agreement will apply to Party A and to Party B.

The “Automatic Early Termination” provision of Section 6(a) of the Agreement will not apply to Party A and to Party B.

“Termination Currency” means USD.

Additional Termination Event. The following shall constitute an Additional Termination Event: None

Tax Representations:

(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.

RBCCM Ref: NY-5189 (Amended & Restated)

(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.

Tax Forms: For the purpose of Sections 3(d), 4(a)(i) and (ii) of the Agreement, each party agrees to deliver the following documents:

Tax forms, documents or certificates to be delivered are:

Each party agrees to complete (accurately and in a manner reasonably satisfactory to the other party), execute, and deliver to the other party, United States Internal Revenue Service Form W-9 or W-8 BEN, or any successor of such form(s): (i) before the first payment date under this agreement; (ii) promptly upon reasonable demand by the other party; and (iii) promptly upon learning that any such form(s) previously provided by the other party has become obsolete or incorrect.


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


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

	(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 party’s 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.


	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