Exhibit 4.10
_________________________________________________
GUARANTEE AGREEMENT
by and between
WESBANCO, INC.
and
U.S. BANK NATIONAL ASSOCIATION
Dated as of June 26, 2003
_________________________________________________
GUARANTEE AGREEMENT
-------------------
This GUARANTEE AGREEMENT (this "Guarantee"), dated as of
June 26, 2003, is executed and delivered by Wesbanco, Inc., a
West Virginia corporation (the "Guarantor"), and U.S. Bank
National Association, a national banking association, organized
under the laws of the United States of America, as trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Capital Securities (as defined
herein) of Wesbanco, Inc. Capital Statutory Trust III, a
Connecticut statutory trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of the date hereof among
U.S. Bank National Association, not in its individual capacity
but solely as institutional trustee, the administrators of the
Issuer named therein, the Guarantor, as sponsor, and the holders
from time to time of undivided beneficial interests in the
assets of the Issuer, the Issuer is issuing on the date hereof
those undivided beneficial interests, having an aggregate
liquidation amount of $17,000,000.00 (the "Capital Securities");
and
WHEREAS, as incentive for the Holders to purchase the
Capital Securities, the Guarantor desires irrevocably and
unconditionally to agree, to the extent set forth in this
Guarantee, to pay to the Holders of Capital Securities the
Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the purchase by each
Holder of the Capital Securities, which purchase the Guarantor
hereby agrees shall benefit the Guarantor, the Guarantor
executes and delivers this Guarantee for the benefit of the
Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1. Definitions and Interpretation. In this
Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee but not
defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) a term defined anywhere in this Guarantee has the same
meaning throughout;
(c) all references to "the Guarantee" or "this Guarantee"
are to this Guarantee as modified, supplemented or amended from
time to time;
(d) all references in this Guarantee to "Articles" or
"Sections" are to Articles or Sections of this Guarantee, unless
otherwise specified;
(e) terms defined in the Declaration as at the date of
execution of this Guarantee have the same meanings when used in
this Guarantee, unless otherwise defined in this Guarantee or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and
vice versa.
"Affiliate" has the same meaning as given to that term in
Rule 405 of the Securities Act of 1933, as amended, or any
successor rule thereunder.
"Beneficiaries" means any Person to whom the Issuer is or
hereafter becomes indebted or liable.
"Capital Securities" has the meaning set forth in the
recitals to this Guarantee.
"Common Securities" means the common securities issued by
the Issuer to the Guarantor pursuant to the Declaration.
"Corporate Trust Office" means the office of the Guarantee
Trustee at which the corporate trust business of the Guarantee
Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this
Guarantee is located at 000 Xxxxxx Xxxxxx, Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000.
"Covered Person" means any Holder of Capital Securities.
"Debentures" means the debt securities of the Guarantor
designated the Fixed/Floating Rate Junior Subordinated
Deferrable Interest Debentures due 2033 held by the
Institutional Trustee (as defined in the Declaration) of the
Issuer.
"Declaration Event of Default" means an "Event of Default"
as defined in the Declaration.
"Event of Default" has the meaning set forth in Section
2.4(a).
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Capital
Securities, to the extent not paid or made by the Issuer:
(i) any accrued and unpaid Distributions (as defined in the
Declaration) which are required to be paid on such Capital
Securities to the extent the Issuer shall have funds available
therefor, (ii) the Redemption Price to the extent the Issuer has
funds available therefor, with respect to any Capital Securities
called for redemption by the Issuer, (iii) the Special
Redemption Price to the extent the Issuer has funds available
therefor, with respect to Capital Securities redeemed upon the
occurrence of a Special Event, and (iv) upon a voluntary or
involuntary liquidation, dissolution, winding-up or termination
of the Issuer (other than in connection with the distribution of
Debentures to the Holders of the Capital Securities in exchange
therefor as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Capital Securities to the date of payment,
to the extent the Issuer shall have funds available therefor,
and (b) the amount of assets of the Issuer remaining available
for distribution to Holders in liquidation of the Issuer (in
either case, the "Liquidation Distribution").
"Guarantee Trustee" means U.S. Bank National Association,
until a Successor Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this
Guarantee and thereafter means each such Successor Guarantee
Trustee.
"Guarantor" means Wesbanco, Inc. and each of its successors
and assigns.
"Holder" means any holder, as registered on the books and
records of the Issuer, of any Capital Securities; provided,
however, that, in determining whether the Holders of the
requisite percentage of Capital Securities have given any
request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Guarantee Trustee, any
Affiliate of the Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Guarantee Trustee.
2
"Indenture" means the Indenture dated as of the date hereof
between the Guarantor and U.S. Bank National Association, not in
its individual capacity but solely as trustee, and any indenture
supplemental thereto pursuant to which the Debentures are to be
issued to the institutional trustee of the Issuer.
"Issuer" has the meaning set forth in the opening paragraph
to this Guarantee.
"Liquidation Distribution" has the meaning set forth in the
definition of "Guarantee Payments" herein.
"Majority in liquidation amount of the Capital Securities"
means Holder(s) of outstanding Capital Securities, voting
together as a class, but separately from the holders of Common
Securities, of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions
to the date upon which the voting percentages are determined) of
all Capital Securities then outstanding.
"Obligations" means any costs, expenses or liabilities (but
not including liabilities related to taxes) of the Issuer other
than obligations of the Issuer to pay to holders of any Trust
Securities the amounts due such holders pursuant to the terms of
the Trust Securities.
"Officer's Certificate" means, with respect to any Person,
a certificate signed by one Authorized Officer of such Person.
Any Officer's Certificate delivered with respect to compliance
with a condition or covenant provided for in this Guarantee
shall include:
(a) a statement that the officer signing the
Officer's Certificate has read the covenant or condition
and the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by the officer in
rendering the Officer's Certificate;
(c) a statement that the officer has made such
examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of the
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association,
joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"Redemption Price" has the meaning set forth in the
Indenture.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any officer within the Corporate Trust Office of the
Guarantee Trustee including any Vice President, Assistant Vice
President, Secretary, Assistant Secretary or any other officer
of the Guarantee Trustee customarily performing functions
similar to those performed by any of the above designated
officers and also, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the
particular subject.
"Special Event" has the meaning set forth in the Indenture.
3
"Special Redemption Price" has the meaning set forth in the
Indenture.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee
Trustee under Section 3.1.
"Trust Securities" means the Common Securities and the
Capital Securities.
ARTICLE II
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
Section 2.1. Powers and Duties of the Guarantee Trustee.
------------------------------------------
(a) This Guarantee shall be held by the Guarantee Trustee
for the benefit of the Holders of the Capital Securities, and
the Guarantee Trustee shall not transfer this Guarantee to any
Person except a Holder of Capital Securities exercising his or
her rights pursuant to Section 4.4(b) or to a Successor
Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as Successor Guarantee
Trustee. The right, title and interest of the Guarantee Trustee
shall automatically vest in any Successor Guarantee Trustee, and
such vesting and cessation of title shall be effective whether
or not conveyancing documents have been executed and delivered
pursuant to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Guarantee Trustee has occurred and is continuing,
the Guarantee Trustee shall enforce this Guarantee for the
benefit of the Holders of the Capital Securities.
(c) The Guarantee Trustee, before the occurrence of any
Event of Default and after curing all Events of Default that may
have occurred, shall undertake to perform only such duties as
are specifically set forth in this Guarantee, and no implied
covenants shall be read into this Guarantee against the
Guarantee Trustee. In case an Event of Default has occurred
(that has not been waived pursuant to Section 2.4) and is
actually known to a Responsible Officer of the Guarantee
Trustee, the Guarantee Trustee shall exercise such of the rights
and powers vested in it by this Guarantee, and use the same
degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(d) No provision of this Guarantee shall be construed to
relieve the Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) prior to the occurrence of any Event of Default
and after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express
provisions of this Guarantee, and the Guarantee
Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set
forth in this Guarantee, and no implied covenants or
obligations shall be read into this Guarantee against
the Guarantee Trustee; and
(B) in the absence of bad faith on the part of
the Guarantee Trustee, the Guarantee Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the
Guarantee Trustee and conforming to the requirements
of this Guarantee; but in the case of any such
certificates or opinions that by any provision hereof
are specifically required to be furnished
4
to the Guarantee Trustee, the Guarantee Trustee shall be
under a duty to examine the same to determine whether
or not they conform to the requirements of this
Guarantee;
(ii) the Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer of the Guarantee Trustee, unless it shall be proved
that such Responsible Officer of the Guarantee Trustee or
the Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by
it in good faith in accordance with the written direction
of the Holders of not less than a Majority in liquidation
amount of the Capital Securities relating to the time,
method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee, or relating to
the exercise of any trust or power conferred upon the
Guarantee Trustee under this Guarantee; and
(iv) no provision of this Guarantee shall require the
Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of
such funds is not reasonably assured to it under the terms
of this Guarantee or security and indemnity, reasonably
satisfactory to the Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
Section 2.2. Certain Rights of Guarantee Trustee.
-----------------------------------
(a) Subject to the provisions of Section 2.1:
(i) The Guarantee Trustee may conclusively rely, and
shall be fully protected in acting or refraining from
acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to
be genuine and to have been signed, sent or presented by
the proper party or parties.
(ii) Any direction or act of the Guarantor
contemplated by this Guarantee shall be sufficiently
evidenced by an Officer's Certificate.
(iii) Whenever, in the administration of this
Guarantee, the Guarantee Trustee shall deem it desirable
that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Guarantee
Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officer's Certificate
of the Guarantor which, upon receipt of such request, shall
be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee shall have no duty to see
to any recording, filing or registration of any instrument
(or any re-recording, refiling or re-registration thereof).
(v) The Guarantee Trustee may consult with counsel of
its selection, and the advice or opinion of such counsel
with respect to legal matters shall be full and complete
authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and
5
in accordance with such advice or opinion. Such counsel
may be counsel to the Guarantor or any of its Affiliates
and may include any of its employees. The Guarantee
Trustee shall have the right at any time to seek
instructions concerning the administration of this
Guarantee from any court of competent jurisdiction.
(vi) The Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested
in it by this Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the
Guarantee Trustee such security and indemnity, reasonably
satisfactory to the Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses and the
expenses of the Guarantee Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee
Trustee; provided, however, that nothing contained in this
Section 2.2(a)(vi) shall relieve the Guarantee Trustee,
upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it
by this Guarantee.
(vii) The Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee
Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see
fit.
(viii) The Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, nominees,
custodians or attorneys, and the Guarantee Trustee shall
not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it
hereunder.
(ix) Any action taken by the Guarantee Trustee or its
agents hereunder shall bind the Holders of the Capital
Securities, and the signature of the Guarantee Trustee or
its agents alone shall be sufficient and effective to
perform any such action. No third party shall be required
to inquire as to the authority of the Guarantee Trustee to
so act or as to its compliance with any of the terms and
provisions of this Guarantee, both of which shall be
conclusively evidenced by the Guarantee Trustee's or its
agent's taking such action.
(x) Whenever in the administration of this Guarantee
the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Guarantee Trustee
(i) may request instructions from the Holders of a Majority
in liquidation amount of the Capital Securities, (ii) may
refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and
(iii) shall be protected in conclusively relying on or
acting in accordance with such instructions.
(xi) The Guarantee Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in
good faith, without negligence, and reasonably believed by
it to be authorized or within the discretion or rights or
powers conferred upon it by this Guarantee.
(b) No provision of this Guarantee shall be deemed to
impose any duty or obligation on the Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it, in any jurisdiction in
which it shall be illegal or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with
applicable law to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive power
or authority available to the Guarantee Trustee shall be
construed to be a duty.
6
Section 2.3. Not Responsible for Recitals or Issuance of Guarantee.
-----------------------------------------------------
The recitals contained in this Guarantee shall be
taken as the statements of the Guarantor, and the Guarantee
Trustee does not assume any responsibility for their
correctness. The Guarantee Trustee makes no representation as
to the validity or sufficiency of this Guarantee.
Section 2.4. Events of Default; Waiver.
-------------------------
(a) An Event of Default under this Guarantee will occur
upon the failure of the Guarantor to perform any of its payment
or other obligations hereunder.
(b) The Holders of a Majority in liquidation amount of the
Capital Securities may, voting or consenting as a class, on
behalf of the Holders of all of the Capital Securities, waive
any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and
shall be deemed to have been cured, for every purpose of this
Guarantee, but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent
thereon.
Section 2.5. Events of Default; Notice.
-------------------------
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders of the Capital Securities and
the Guarantor, notices of all Events of Default actually known
to a Responsible Officer of the Guarantee Trustee, unless such
defaults have been cured before the giving of such notice,
provided, however, that the Guarantee Trustee shall be protected
in withholding such notice if and so long as a Responsible
Officer of the Guarantee Trustee in good faith determines that
the withholding of such notice is in the interests of the
Holders of the Capital Securities.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Guarantee Trustee
shall have received written notice from the Guarantor or a
Holder of the Capital Securities (except in the case of a
payment default), or a Responsible Officer of the Guarantee
Trustee charged with the administration of this Guarantee shall
have obtained actual knowledge thereof.
ARTICLE III
GUARANTEE TRUSTEE
Section 3.1. Guarantee Trustee; Eligibility.
------------------------------
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor, and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia, or
Person authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial
or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or
examining authority referred to above, then, for the
purposes of this Section 3.1(a)(ii), the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published.
7
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 3.1(a), the Guarantee Trustee
shall immediately resign in the manner and with the effect set
out in Section 3.2(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act, the Guarantee Trustee shall either
eliminate such interest or resign to the extent and in the
manner provided by, and subject to this Guarantee.
Section 3.2. Appointment, Removal and Resignation of Guarantee
-------------------------------------------------
Trustee.
-------
(a) Subject to Section 3.2(b), the Guarantee Trustee may
be appointed or removed without cause at any time by the
Guarantor except during an Event of Default.
(b) The Guarantee Trustee shall not be removed in
accordance with Section 3.2(a) until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee
and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold
office until a Successor Guarantee Trustee shall have been
appointed or until its removal or resignation. The Guarantee
Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by
an instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this
Section 3.2 within 60 days after delivery of an instrument of
removal or resignation, the Guarantee Trustee resigning or being
removed may petition any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or
resignation of the Guarantee Trustee pursuant to this Section
3.2, the Guarantor shall pay to the Guarantee Trustee all
amounts owing to the Guarantee Trustee under Sections 7.2 and
7.3 accrued to the date of such termination, removal or
resignation.
8
ARTICLE IV
GUARANTEE
Section 4.1. Guarantee.
---------
(a) The Guarantor irrevocably and unconditionally agrees
to pay in full to the Holders the Guarantee Payments (without
duplication of amounts theretofore paid by the Issuer), as and
when due, regardless of any defense (except the defense of
payment by the Issuer), right of set-off or counterclaim that
the Issuer may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of
the required amounts by the Guarantor to the Holders or by
causing the Issuer to pay such amounts to the Holders.
(b) The Guarantor hereby also agrees to assume any and all
Obligations of the Issuer and in the event any such Obligation
is not so assumed, subject to the terms and conditions hereof,
the Guarantor hereby irrevocably and unconditionally guarantees
to each Beneficiary the full payment, when and as due, of any
and all Obligations to such Beneficiaries. This Guarantee is
intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
Section 4.2. Waiver of Notice and Demand. The Guarantor
---------------------------
hereby waives notice of acceptance of this Guarantee and of any
liability to which it applies or may apply, presentment, demand
for payment, any right to require a proceeding first against the
Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
Section 4.3. Obligations Not Affected. The obligations,
------------------------
covenants, agreements and duties of the Guarantor under this
Guarantee shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of any
express or implied agreement, covenant, term or condition
relating to the Capital Securities to be performed or observed
by the Issuer;
(b) the extension of time for the payment by the Issuer of
all or any portion of the Distributions, Redemption Price,
Special Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Capital Securities or the
extension of time for the performance of any other obligation
under, arising out of or in connection with, the Capital
Securities (other than an extension of time for payment of
Distributions, Redemption Price, Special Redemption Price,
Liquidation Distribution or other sum payable that results from
the extension of any interest payment period on the Debentures
or any extension of the maturity date of the Debentures
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Holders
pursuant to the terms of the Capital Securities, or any action
on the part of the Issuer granting indulgence or extension of
any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets
of the Issuer;
9
(e) any invalidity of, or defect or deficiency in, the
Capital Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a
guarantor, it being the intent of this Section 4.3 that the
obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice
to, or obtain consent of, the Guarantor with respect to the
happening of any of the foregoing.
Section 4.4. Rights of Holders.
-----------------
(a) The Holders of a Majority in liquidation amount of the
Capital Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Guarantee or to direct
the exercise of any trust or power conferred upon the Guarantee
Trustee under this Guarantee; provided, however, that (subject
to Section 2.1) the Guarantee Trustee shall have the right to
decline to follow any such direction if the Guarantee Trustee
being advised by counsel determines that the action or
proceeding so directed may not lawfully be taken or if the
Guarantee Trustee in good faith by its board of directors or
trustees, executive committees or a trust committee of directors
or trustees and/or Responsible Officers shall determine that the
action or proceedings so directed would involve the Guarantee
Trustee in personal liability.
(b) Any Holder of Capital Securities may institute a legal
proceeding directly against the Guarantor to enforce the
Guarantee Trustee's rights under this Guarantee, without first
instituting a legal proceeding against the Issuer, the Guarantee
Trustee or any other Person. The Guarantor waives any right or
remedy to require that any such action be brought first against
the Issuer, the Guarantee Trustee or any other Person before so
proceeding directly against the Guarantor.
Section 4.5. Guarantee of Payment. This Guarantee creates a
--------------------
guarantee of payment and not of collection.
Section 4.6. Subrogation. The Guarantor shall be subrogated
-----------
to all (if any) rights of the Holders of Capital Securities
against the Issuer in respect of any amounts paid to such
Holders by the Guarantor under this Guarantee; provided,
however, that the Guarantor shall not (except to the extent
required by mandatory provisions of law) be entitled to enforce
or exercise any right that it may acquire by way of subrogation
or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee, if, after giving
effect to any such payment, any amounts are due and unpaid under
this Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to
hold such amount in trust for the Holders and to pay over such
amount to the Holders.
Section 4.7. Independent Obligations. The Guarantor
-----------------------
acknowledges that its obligations hereunder are independent of
the obligations of the Issuer with respect to the Capital
Securities and that the Guarantor shall be liable as principal
and as debtor hereunder to make Guarantee Payments pursuant to
the terms of this Guarantee notwithstanding the occurrence of
any event referred to in subsections (a) through (g), inclusive,
of Section 4.3 hereof.
Section 4.8. Enforcement by a Beneficiary. A Beneficiary may
----------------------------
enforce the obligations of the Guarantor contained in Section
4.1(b) directly against the Guarantor and the Guarantor waives
any right or remedy to require that any action be brought
against the Issuer or any other person or entity
10
before proceeding against the Guarantor. The Guarantor shall be
subrogated to all rights (if any) of any Beneficiary against the
Issuer in respect of any amounts paid to the Beneficiaries by
the Guarantor under this Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights
that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of
payment under this Guarantee, if at the time of any such
payment, and after giving effect to such payment, any amounts
are due and unpaid under this Guarantee.
ARTICLE V
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 5.1. Limitation of Transactions. So long as any
--------------------------
Capital Securities remain outstanding, if (a) there shall have
occurred and be continuing an Event of Default or a Declaration
Event of Default or (b) the Guarantor shall have selected an
Extension Period as provided in the Declaration and such period,
or any extension thereof, shall have commenced and be
continuing, then the Guarantor shall not and shall not permit
any Affiliate to (x) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Guarantor's or
such Affiliate's capital stock (other than payments of dividends
or distributions to the Guarantor) or make any guarantee
payments with respect to the foregoing or (y) make any payment
of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Guarantor or any
Affiliate that rank pari passu in all respects with or junior in
interest to the Debentures (other than, with respect to clauses
(x) and (y) above, (i) repurchases, redemptions or other
acquisitions of shares of capital stock of the Guarantor in
connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of one or more
employees, officers, directors or consultants, in connection
with a dividend reinvestment or stockholder stock purchase plan
or in connection with the issuance of capital stock of the
Guarantor (or securities convertible into or exercisable for
such capital stock) as consideration in an acquisition
transaction entered into prior to the occurrence of the Event of
Default, Declaration Event of Default or Extension Period, as
applicable, (ii) as a result of any exchange or conversion of
any class or series of the Guarantor's capital stock (or any
capital stock of a subsidiary of the Guarantor) for any class or
series of the Guarantor's capital stock or of any class or
series of the Guarantor's indebtedness for any class or series
of the Guarantor's capital stock, (iii) the purchase of
fractional interests in shares of the Guarantor's capital stock
pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged,
(iv) any declaration of a dividend in connection with any
stockholders' rights plan, or the issuance of rights, stock or
other property under any stockholders' rights plan, or the
redemption or repurchase of rights pursuant thereto, (v) any
dividend in the form of stock, warrants, options or other rights
where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that
on which the dividend is being paid or ranks pari passu with or
junior to such stock and any cash payments in lieu of fractional
shares issued in connection therewith, or (vi) payments under
this Guarantee).
Section 5.2. Ranking. This Guarantee will constitute an
-------
unsecured obligation of the Guarantor and will rank subordinate
and junior in right of payment to all present and future Senior
Indebtedness (as defined in the Indenture) of the Guarantor. By
their acceptance thereof, each Holder of Capital Securities
agrees to the foregoing provisions of this Guarantee and the
other terms set forth herein.
The right of the Guarantor to participate in any
distribution of assets of any of its subsidiaries upon any such
subsidiary's liquidation or reorganization or otherwise is
subject to the prior claims of creditors of that subsidiary,
except to the extent the Guarantor may itself be recognized as a
creditor of that subsidiary. Accordingly, the Guarantor's
obligations under this Guarantee will be effectively
11
subordinated to all existing and future liabilities of the
Guarantor's subsidiaries, and claimants should look only to the
assets of the Guarantor for payments hereunder. This Guarantee
does not limit the incurrence or issuance of other secured or
unsecured debt of the Guarantor, including Senior Indebtedness
of the Guarantor, under any indenture that the Guarantor may
enter into in the future or otherwise.
ARTICLE VI
TERMINATION
Section 6.1. Termination. This Guarantee shall terminate as
-----------
to the Capital Securities (i) upon full payment of the
Redemption Price or Special Redemption Price of all Capital
Securities then outstanding, (ii) upon the distribution of all
of the Debentures to the Holders of all of the Capital
Securities or (iii) upon full payment of the amounts payable in
accordance with the Declaration upon dissolution of the Issuer.
This Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of
Capital Securities must restore payment of any sums paid under
the Capital Securities or under this Guarantee.
ARTICLE VII
INDEMNIFICATION
Section 7.1. Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any
Covered Person for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Indemnified
Person in good faith in accordance with this Guarantee and in a
manner that such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified
Person by this Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Issuer or the
Guarantor and upon such information, opinions, reports or
statements presented to the Issuer or the Guarantor by any
Person as to matters the Indemnified Person reasonably believes
are within such other Person's professional or expert competence
and who, if selected by such Indemnified Person, has been
selected with reasonable care by such Indemnified Person,
including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, profits, losses, or
any other facts pertinent to the existence and amount of assets
from which Distributions to Holders of Capital Securities might
properly be paid.
Section 7.2. Indemnification.
---------------
(a) The Guarantor agrees to indemnify each Indemnified
Person for, and to hold each Indemnified Person harmless
against, any and all loss, liability, damage, claim or expense
incurred without negligence or willful misconduct on the part of
the Indemnified Person, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including, but not limited to, the costs and expenses (including
reasonable legal fees and expenses) of the Indemnified Person
defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any
of the Indemnified Person's powers or duties hereunder. The
obligation to indemnify as set forth in this Section 7.2 shall
survive the resignation or removal of the Guarantee Trustee and
the termination of this Guarantee.
12
(b) Promptly after receipt by an Indemnified Person under
this Section 7.2 of notice of the commencement of any action,
such Indemnified Person will, if a claim in respect thereof is
to be made against the Guarantor under this Section 7.2, notify
the Guarantor in writing of the commencement thereof; but the
failure so to notify the Guarantor (i) will not relieve the
Guarantor from liability under paragraph (a) above unless and to
the extent that the Guarantor did not otherwise learn of such
action and such failure results in the forfeiture by the
Guarantor of substantial rights and defenses and (ii) will not,
in any event, relieve the Guarantor from any obligations to any
Indemnified Person other than the indemnification obligation
provided in paragraph (a) above. The Guarantor shall be
entitled to appoint counsel of the Guarantor's choice at the
Guarantor's expense to represent the Indemnified Person in any
action for which indemnification is sought (in which case the
Guarantor shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the Indemnified
Person or Persons except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the
Indemnified Person. Notwithstanding the Guarantor's election to
appoint counsel to represent the Guarantor in an action, the
Indemnified Person shall have the right to employ separate
counsel (including local counsel), and the Guarantor shall bear
the reasonable fees, costs and expenses of such separate counsel
if (i) the use of counsel chosen by the Guarantor to represent
the Indemnified Person would present such counsel with a
conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the Indemnified
Person and the Guarantor and the Indemnified Person shall have
reasonably concluded that there may be legal defenses available
to it and/or other Indemnified Person(s) which are different
from or additional to those available to the Guarantor,
(iii) the Guarantor shall not have employed counsel satisfactory
to the Indemnified Person to represent the Indemnified Person
within a reasonable time after notice of the institution of such
action or (iv) the Guarantor shall authorize the Indemnified
Person to employ separate counsel at the expense of the
Guarantor. The Guarantor will not, without the prior written
consent of the Indemnified Persons, settle or compromise or
consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder
(whether or not the Indemnified Persons are actual or potential
parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
Indemnified Person from all liability arising out of such claim,
action, suit or proceeding.
Section 7.3. Compensation; Reimbursement of Expenses.
---------------------------------------
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time such
compensation for all services rendered by it hereunder as the
parties shall agree to from time to time (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); and
(b) except as otherwise expressly provided herein, to
reimburse the Guarantee Trustee upon request for all reasonable
expenses, disbursements and advances incurred or made by it in
accordance with any provision of this Guarantee (including the
reasonable compensation and the expenses and disbursements of
its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or willful
misconduct.
For purposes of clarification, this Section 7.3 does not
contemplate the payment by the Guarantor of acceptance or annual
administration fees owing to the Guarantee Trustee for services
to be provided by the Guarantee Trustee under this Guarantee or
the fees and expenses of the Guarantee Trustee's counsel in
connection with the closing of the transactions contemplated by
this Guarantee. The provisions of this Section 7.3 shall
survive the resignation or removal of the Guarantee Trustee and
the termination of this Guarantee.
13
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Successors and Assigns. All guarantees and
----------------------
agreements contained in this Guarantee shall bind the
successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of
the Capital Securities then outstanding. Except in connection
with any merger or consolidation of the Guarantor with or into
another entity or any sale, transfer or lease of the Guarantor's
assets to another entity, in each case, to the extent permitted
under the Indenture, the Guarantor may not assign its rights or
delegate its obligations under this Guarantee without the prior
approval of the Holders of at least a Majority in liquidation
amount of the Capital Securities.
Section 8.2. Amendments. Except with respect to any changes
----------
that do not adversely affect the rights of Holders of the
Capital Securities in any material respect (in which case no
consent of Holders will be required), this Guarantee may be
amended only with the prior approval of the Holders of not less
than a Majority in liquidation amount of the Capital Securities.
The provisions of the Declaration with respect to amendments
thereof apply to the giving of such approval.
Section 8.3. Notices. All notices provided for in this
-------
Guarantee shall be in writing, duly signed by the party giving
such notice, and shall be delivered, telecopied or mailed by
first class mail, as follows:
(a) If given to the Guarantee Trustee, at the Guarantee
Trustee's mailing address set forth below (or such other address
as the Guarantee Trustee may give notice of to the Holders of
the Capital Securities and the Guarantor):
U.S. Bank National Association
000 Xxxxxx Xxxxxx, Xxxxxxx Square
Hartford, Connecticut 06103
Attention: Corporate Trust Services Division
Telecopy: 000-000-0000
With a copy to:
U.S. Bank National Association
0 Xxxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Corporate Trust Services Division
Telecopy: 000-000-0000
(b) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor
may give notice of to the Holders of the Capital Securities and
to the Guarantee Trustee):
Wesbanco, Inc.
Xxx Xxxx Xxxxx
Xxxxxxxx, Xxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopy: 000-000-0000
14
(c) If given to any Holder of the Capital Securities, at
the address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed
by first class mail, postage prepaid, except that if a notice or
other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
Section 8.4. Benefit. This Guarantee is solely for the
-------
benefit of the Beneficiaries and, subject to Section 2.1(a), is
not separately transferable from the Capital Securities.
Section 8.5. Governing Law. THIS GUARANTEE SHALL BE GOVERNED
-------------
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
Section 8.6. Counterparts. This Guarantee may be executed in
------------
one or more counterparts, each of which shall be an original,
but all of which taken together shall constitute one and the
same instrument.
Section 8.7 Separability. In case one or more of the
------------
provisions contained in this Guarantee shall for any reason be
held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect
any other provisions of this Guarantee, but this Guarantee shall
be construed as if such invalid or illegal or unenforceable
provision had never been contained herein.
Signatures appear on the following page
15
THIS GUARANTEE is executed as of the day and year first above written.
WESBANCO, INC., as Guarantor
By:/s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION,
as Guarantee Trustee
By: /s/ Xxxx X. Xxxxx
-----------------------------_
Name: Xxxx X. Xxxxx
Title: Vice President
