WAIVER AGREEMENT
THIS
WAIVER AGREEMENT dated as of April 27, 2006 (this “Agreement”) is entered into
between WESBANCO, INC., a West Virginia corporation (the “Borrower”),
and
SUNTRUST BANK, a Georgia banking corporation (the "Lender").
All
capitalized terms used herein and not otherwise defined herein shall have the
meanings given to such terms in the Credit Agreement (as defined
below).
RECITALS
WHEREAS,
the Borrower and the Lender entered into that certain Revolving Credit Agreement
dated as of July 30, 2004 (as amended or modified from time to time, the
“Credit
Agreement”);
WHEREAS,
the Borrower acknowledges that an Event of Default currently exists under the
Credit Agreement as a result of the failure of the Borrower to comply with
the
terms of Section 6.2 of the Credit Agreement as of the fiscal quarters ending
September 30, 2005 and December 31, 2005 (the “Existing
Event of Default”)
and
that the Borrower will continue to be in breach of Section 6.2 for the fiscal
quarter ending March 31, 2006 when it delivers its unaudited financial
statements pursuant to Section 5.1(a) (the “Incipient
Event of Default”
and
together with the Existing Event of Default, the “Event
of Default”);
WHEREAS,
the Borrower has requested that the Lender waive the Event of Default and
continue to make available to the Borrower the Revolving Loans provided under
the Credit Agreement;
WHEREAS,
the Lender is willing to waive the Event of Default subject to the terms and
conditions specified in this Agreement;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Reaffirmation
of Existing Debt.
The
Borrower acknowledges and confirms (a) that the Borrower’s obligation to repay
the outstanding principal amount of the Revolving Loans is unconditional and
not
subject to any offsets, defenses or counterclaims, (b) that the Lender has
performed fully all of its obligations under the Credit Agreement, and (c)
by
entering into this Agreement, the Lender does not waive (except as specifically
provided in Section 2 hereof) or release any term or condition of the Credit
Agreement or any of the other Loan Documents or any of its rights or remedies
under such Loan Documents or applicable law or any of the obligations of the
Borrower thereunder.
2. Waiver.
Subject
to the other terms and conditions of this Agreement, the Lender hereby waives
the Event of Default. Except for the waiver contained herein, this Agreement
does not modify or affect the obligations of the Borrower to comply fully with
all terms, conditions and covenants contained in the Loan Documents. Nothing
contained in this Agreement shall be deemed to constitute a waiver of any other
rights or remedies the Lender may have under the Credit Agreement or any other
Loan Documents or under applicable law.
3. Conditions
Precedent.
This
Agreement shall be effective upon the receipt by the Lender of this Agreement
duly executed by the Borrower and the Lender.
4. Miscellaneous.
(a) Except
as
herein specifically agreed, the Credit Agreement, and the obligations of the
Borrower thereunder and under the other Loan Documents, are hereby ratified
and
confirmed and shall remain in full force and effect according to their
terms.
(b) The
Borrower hereby represents and warrants as follows:
(i) The
Borrower has taken all necessary action to authorize the execution, delivery
and
performance of this Agreement.
(ii) This
Agreement has been duly executed and delivered by the Borrower and constitutes
the Borrower’s legal, valid and binding obligations, enforceable in accordance
with its terms, except as such enforceability may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors’ rights generally and (ii) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity).
(iii) No
consent, approval, authorization or order of, or filing, registration or
qualification with, any court or governmental authority or third party is
required in connection with the execution, delivery or performance by the
Borrower of this Agreement.
(c) The
Borrower represents and warrants to the Lender that (i) the representations
and
warranties of the Borrower set forth in Article IV of the Credit Agreement
are
true and correct as of the date hereof with the same effect as if made on and
as
of the date hereof, except to the extent such representations and warranties
expressly relate solely to an earlier date and (ii) except as contemplated
in
this Agreement, no unwaived event has occurred and is continuing which
constitutes a Default or an Event of Default.
(d) This
Agreement may be executed in any number of counterparts, each of which when
so
executed and delivered shall be an original, but all of which shall constitute
one and the same instrument. Delivery of an executed counterpart of this
Agreement by telecopy shall be effective as an original and shall constitute
a
representation that an executed original shall be delivered.
(e) THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF VIRGINIA.
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2
Each
of
the parties hereto has caused a counterpart of this Agreement to be duly
executed and delivered as of the date first above written.
BORROWER: WESBANCO,
INC.,
By:
/s/ Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
EVP - Chief Financial Officer
LENDER: SUNTRUST
BANK
By:
/s/ Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Director
