Exhibit 4.5
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GUARANTEE AGREEMENT
between
WESBANCO, INC.,
as Guarantor,
and
THE BANK OF NEW YORK,
as Guarantee Trustee
Dated as of June 19, 2003
WESBANCO CAPITAL TRUST II
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GUARANTEE AGREEMENT, dated as of June 19, 2003, executed and
delivered by WESBANCO, INC., a West Virginia corporation (the
"Guarantor") having its principal office at One Bank Plaza,
Wheeling, WV 26003, and THE BANK OF NEW YORK, a New York banking
corporation, as trustee (in such capacity, the "Guarantee
Trustee"), for the benefit of the Holders (as defined herein)
from time to time of the Preferred Securities (as defined
herein) of WESBANCO CAPITAL TRUST II, a Delaware statutory trust
(the "Issuer").
W I T N E S S E T H :
WHEREAS, pursuant to an Amended and Restated Trust Agreement,
dated as of the date hereof (the "Trust Agreement"), among the
Guarantor, as Depositor, the Property Trustee, the Delaware
Trustee and the Administrative Trustees named therein and the
holders from time to time of the Preferred Securities (as
hereinafter defined), the Issuer is issuing Thirteen Million
Dollars ($13,000,000) aggregate Liquidation Amount (as defined
in the Trust Agreement) of its Floating Rate Preferred
Securities (Liquidation Amount $1,000 per preferred security)
(the "Preferred Securities") representing preferred undivided
beneficial interests in the assets of the Issuer and having the
terms set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the
Issuer and the proceeds thereof, together with the proceeds from
the issuance of the Issuer's Common Securities (as defined
below), will be used to purchase the Notes (as defined in the
Trust Agreement) of the Guarantor; and
WHEREAS, as incentive for the Holders to purchase Preferred
Securities the Guarantor desires irrevocably and unconditionally
to agree, to the extent set forth herein, to pay to the Holders
of the Preferred 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 Preferred Securities, which purchase the Guarantor
hereby agrees shall benefit the Guarantor, the Guarantor
executes and delivers this Guarantee Agreement to provide as
follows for the benefit of the Holders from time to time of the
Preferred Securities:
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Interpretation.
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee
Agreement but not defined in the preamble hereto have the
respective meanings assigned to them in Section 1.2;
(b) the words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without
limitation";
(c) all references to "the Guarantee Agreement" or
"this Guarantee Agreement" are to this Guarantee Agreement
as modified, supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to
Articles and Sections are to Articles and Sections of this
Guarantee Agreement unless otherwise specified;
(e) the words "hereby", "herein", "hereof" and
"hereunder" and other words of similar import refer to this
Guarantee Agreement as a whole and not to any particular
Article, Section or other subdivision;
(f) a reference to the singular includes the plural
and vice versa; and
(g) the masculine, feminine or neuter genders used
herein shall include the masculine, feminine and neuter
genders.
SECTION 1.2. Definitions.
As used in this Guarantee Agreement, the terms set forth
below shall, unless the context otherwise requires, have the
following meanings:
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such
specified Person; provided, that the Issuer shall not be
deemed to be an Affiliate of the Guarantor. For the
purposes of this definition, "control" when used with
respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to
the foregoing.
"Beneficiaries" means any Person to whom the Issuer is
or hereafter becomes indebted or liable.
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"Board of Directors" means either the board of
directors of the Guarantor or any duly authorized committee
of that board.
"Common Securities" means the securities representing
common undivided beneficial interests in the assets of the
Issuer.
"Debt" means with respect to any Person, whether
recourse is to all or a portion of the assets of such
Person, whether currently existing or hereafter incurred,
and whether or not contingent and without duplication, (i)
every obligation of such Person for money borrowed; (ii)
every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including
obligations incurred in connection with the acquisition of
property, assets or businesses; (iii) every reimbursement
obligation of such Person with respect to letters of
credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of
such Person issued or assumed as the deferred purchase
price of property or services (but excluding trade accounts
payable arising in the ordinary course of business); (v)
every capital lease obligation of such Person; (vi) all
indebtedness of such Person, whether incurred on or prior
to the date of this Guarantee Agreement or thereafter
incurred, for claims in respect of derivative products,
including interest rate, foreign exchange rate and
commodity forward contracts, options, swaps and similar
arrangements; (vii) every obligation of the type referred
to in clauses (i) through (vi) of another Person and all
dividends of another Person the payment of which, in either
case, such Person has guaranteed or is responsible or
liable for, directly or indirectly, as obligor or
otherwise; and (viii) any renewals, extensions, refundings,
amendments or modifications of any obligation of the type
referred to in clauses (i) through (vii).
"Event of Default" means a default by the Guarantor on
any of its payment or other obligations under this
Guarantee Agreement; provided, that except with respect to
a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default from the
Guarantee Trustee and shall not have cured such default
within thirty (30) days after receipt of such notice.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the
Preferred Securities, to the extent not paid or made by or
on behalf of the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) required
to be paid on the Preferred Securities, to the extent the
Issuer shall have funds on hand available therefor at such
time, (ii) the Redemption Price with respect to any
Preferred Securities to the extent the Issuer shall have
funds on hand available therefor at such time, and (iii)
upon a voluntary or involuntary termination, winding up or
liquidation of the Issuer, unless Notes are distributed to
the Holders, the lesser of (a) the aggregate of the
Liquidation Amount of $1,000 per Preferred Security plus
accumulated and unpaid Distributions on the Preferred
Securities to the date of payment, to the extent that the
Issuer shall have funds available therefor at such time and
(b) the amount of assets of the Issuer remaining available
for distribution to Holders in liquidation of the Issuer
after satisfaction of liabilities to creditors of the
Issuer in accordance with applicable law (in either case,
the "Liquidation Distribution").
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"Guarantee Trustee" means The Bank of New York, until
a Successor Guarantee Trustee, as defined below, has been
appointed and has accepted such appointment pursuant to the
terms of this Guarantee Agreement, and thereafter means
each such Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books
and records of the Issuer, of any Preferred Securities;
provided, that, in determining whether the holders of the
requisite percentage of Preferred Securities have given any
request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor, the Guarantee Trustee or
any Affiliate of the Guarantor or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture,
dated as of the date hereof, as supplemented and amended,
between the Guarantor and The Bank of New York, as trustee.
"List of Holders" has the meaning specified in Section 2.1.
"Majority in Liquidation Amount of the Preferred
Securities" means a vote by the Holder(s), voting
separately as a class, of more than fifty percent (50%) of
the aggregate Liquidation Amount of all then outstanding
Preferred Securities issued by the Issuer.
"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.
"Officers' Certificate" means, with respect to any
Person, a certificate signed by the Chief Executive
Officer, Chief Financial Officer, President or a Vice
President of such Person, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant
Secretary of such Person, and delivered to the Guarantee
Trustee. Any Officers' Certificate delivered with respect
to compliance with a condition or covenant provided for in
this Guarantee Agreement (other than the certificate
provided pursuant to Section 2.4) shall include:
(a) a statement that each officer signing the
Officers' 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 each officer in
rendering the Officers' Certificate;
(c) a statement that each 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 each
officer, such condition or covenant has been complied with.
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"Person" means a legal person, including any
individual, corporation, estate, partnership, joint
venture, association, joint stock company, limited
liability company, trust, unincorporated association,
government or any agency or political subdivision thereof
or any other entity of whatever nature.
"Responsible Officer" means, with respect to the
Guarantee Trustee, any Senior Vice President, any Vice
President, any Assistant Vice President, the Secretary, any
Assistant Secretary, the Treasurer, any Assistant
Treasurer, any Trust Officer or Assistant Trust Officer or
any other officer of the Corporate Trust Department of the
Guarantee Trustee and also means, 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.
"Senior Debt" means the principal of and any premium
and interest on (including interest accruing on or after
the filing of any petition in bankruptcy or for
reorganization relating to the Guarantor whether or not
such claim for post-petition interest is allowed in such
proceeding) all Debt of the Guarantor, whether incurred on
or prior to the date of the Indenture or thereafter
incurred, unless it is provided in the instrument creating
or evidencing the same or pursuant to which the same is
outstanding, that such obligations are not superior in
right of payment to the Preferred Securities; provided,
that if the Guarantor is subject to the regulation and
supervision of an "appropriate Federal banking agency"
within the meaning of 12 U.S.C. 1813(q), the Guarantor
shall have received the approval of such appropriate
Federal banking agency prior to issuing any such
obligation; and provided, further, that Senior Debt shall
not include any other debt securities and guarantees in
respect of such debt securities issued to any trust other
than the Trust (or a trustee of any such trust),
partnership or other entity affiliated with the Guarantor
that is a financing vehicle of the Guarantor (a "financing
entity") in connection with the issuance by such financing
entity of equity securities or other securities that are
treated as equity capital for regulatory capital purposes
guaranteed by the Guarantor pursuant to an instrument that
ranks pari passu with or junior in right of payment to the
Indenture, including, without limitation, securities issued
by WesBanco, Inc. Capital Trust I.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended and as in effect on the date of this
Guarantee Agreement.
"Successor Guarantee Trustee" means a successor
Guarantee Trustee possessing the qualifications to act as
Guarantee Trustee under Section 4.1.
Capitalized or otherwise defined terms used but not otherwise
defined herein shall have the meanings assigned to such terms in
the Trust Agreement as in effect on the date hereof.
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ARTICLE II
REPORTS
SECTION 2.1. List of Holders.
The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee at such times as the Guarantee Trustee may
request in writing, within thirty (30) days after the receipt by
the Guarantor of any such request, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and
addresses of the Holders (the "List of Holders") as of a date
not more than fifteen (15) days prior to the time such list is
furnished, in each case to the extent such information is in the
possession or control of the Guarantor and is not identical to a
previously supplied list of Holders or has not otherwise been
received by the Guarantee Trustee in its capacity as such. The
Guarantee Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
SECTION 2.2. Periodic Reports to the Guarantee Trustee.
The Guarantor shall deliver to the Guarantee Trustee,
within one hundred and twenty (120) days after the end of each
fiscal year of the Guarantor ending after the date of this
Guarantee Agreement, an Officers' Certificate covering the
preceding fiscal year, stating whether or not to the knowledge
of the signers thereof the Guarantor is in default in the
performance or observance of any of the terms or provisions or
any of the conditions of this Guarantee Agreement (without
regard to any period of grace or requirement of notice provided
hereunder) and, if the Guarantor shall be in default thereof,
specifying all such defaults and the nature and status thereof
of which they have knowledge.
SECTION 2.3. Event of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the
Preferred Securities may, on behalf of the Holders, waive any
past Event of Default and its consequences. Upon such waiver,
any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured,
for every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event
of Default or impair any right consequent therefrom.
SECTION 2.4. Event of Default; Notice.
(a) The Guarantee Trustee shall, within ninety (90) days
after the occurrence of a default, transmit to the Holders
notices of all defaults actually known to the Guarantee Trustee,
unless such defaults have been cured or waived before the giving
of such notice; provided, that, except in the case of a default
in the payment of a Guarantee Payment, the Guarantee Trustee
shall be protected in withholding such notice if and so long as
the Board of Directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the
Guarantee Trustee in good faith determine that the withholding
of such notice is in the interests of the Holders. For the
purpose of this Section 2.4, the term "default" means any event
that is, or after notice or lapse of time or both would become,
an Event of Default.
(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, or a Responsible Officer
charged with the administration of this Guarantee Agreement
shall have obtained written notice, of such Event of Default
from the Guarantor or a Holder.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the
Guarantee Trustee for the benefit of the Holders, and the
Guarantee Trustee shall not transfer this Guarantee Agreement to
any Person except a Holder exercising its rights pursuant to
Section 5.4(d) or to a Successor Guarantee Trustee upon
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, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and
such vesting and succession 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) The rights, immunities, duties and responsibilities of
the Guarantee Trustee shall be as provided by this Guarantee
Agreement and there shall be no other duties or obligations,
express or implied, of the Guarantee Trustee. Notwithstanding
the foregoing, no provisions of this Guarantee Agreement shall
require the Guarantee Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
Whether or not herein expressly so provided, every provision of
this Guarantee Agreement relating to the conduct or affecting
the liability of or affording protection to the Guarantee
Trustee shall be subject to the provisions of this Section 3.1.
To the extent that, at law or in equity, the Guarantee Trustee
has duties and liabilities relating to the Guarantor or the
Holders, the Guarantee Trustee shall not be liable to any Holder
for the Guarantee Trustee's good faith reliance on the
provisions of this Guarantee Agreement. The provisions of this
Guarantee Agreement, to the extent that they restrict the duties
and liabilities of the Guarantee Trustee otherwise existing at
law or in equity, are agreed by the Guarantor and the Holders to
replace such other duties and liabilities of the Guarantee
Trustee.
(c) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for
its own negligent action, negligent failure to act or own
willful misconduct, except that:
(i) 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 the Guarantee Trustee was negligent in ascertaining
the pertinent facts upon which such judgment was made; and
(ii) 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 direction of the Holders
of not less than a Majority in Liquidation Amount of the
Preferred Securities relating to the time, method and place
of conducting any proceeding for any remedy available to the
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Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee
Agreement.
SECTION 3.2. Certain Rights of the Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) the Guarantee Trustee may conclusively rely and
shall be fully protected in acting or refraining from
acting in good faith and in accordance with the terms
hereof 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 reasonably 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 Agreement shall be
sufficiently evidenced by an Officers' Certificate unless
otherwise prescribed herein;
(iii) the Guarantee Trustee may consult with counsel,
and the advice of such counsel shall be full and complete
authorization and protection in respect of any action
taken, suffered or omitted to be taken by it hereunder in
good faith and in reliance thereon and in accordance with
such advice. Such counsel may be counsel to the Guarantee
Trustee, the Guarantor or any of its Affiliates and may be
one of its employees. The Guarantee Trustee shall have the
right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court
of competent jurisdiction;
(iv) the Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested
in it by this Guarantee Agreement at the request or
direction of any Holder, unless such Holder shall have
provided to the Guarantee Trustee reasonable security or
indemnity against the costs, expenses (including reasonable
attorneys' fees and expenses) 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, that, nothing contained in
this Section 3.2(a)(iv) shall be taken to 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 Agreement;
(v) 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, and if the
Guarantee Trustee shall determine to make such inquiry or
investigation, it shall be entitled to examine the books,
records and premises of the Guarantor, personally or by
agent or attorney;
(vi) the Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through its agents, attorneys,
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custodians or nominees and the Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part
of any such agent, attorney, custodian or nominee appointed
with due care by it hereunder;
(vii) whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy
or right hereunder, the Guarantee Trustee (A) may request
instructions from the Holders of a Majority in Liquidation
Amount of the Preferred Securities, (B) may refrain from
enforcing such remedy or right or taking such other action
until such instructions are received and (C) shall be
protected in acting in accordance with such instructions;
(viii) except as otherwise expressly provided by this
Guarantee Agreement, the Guarantee Trustee shall not be
under any obligation to take any action that is
discretionary under the provisions of this Guarantee
Agreement; and
(ix) whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable
that a matter be proved or established before taking,
suffering or omitting to take 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 rely upon an Officers' Certificate
which, upon receipt of such request from the Guarantee
Trustee, shall be promptly delivered by the Guarantor.
(b) No provision of this Guarantee Agreement 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 to act in accordance with such power and
authority.
SECTION 3.3. Compensation.
The Guarantor agrees to pay to the Guarantee Trustee from
time to time reasonable compensation for all services rendered
by it hereunder (which compensation shall not be limited by any
provisions of law in regard to the compensation of a trustee of
an express trust) and to reimburse the Guarantee Trustee upon
request for all reasonable expenses, disbursements and advances
(including the reasonable fees and expenses of its attorneys and
agents) incurred or made by the Guarantee Trustee in accordance
with any provisions of this Guarantee Agreement.
SECTION 3.4. Indemnity.
The Guarantor agrees to indemnify and hold harmless the
Guarantee Trustee and any of its Affiliates and any of their
officers, directors, shareholders, employees, representatives or
agents from and against any loss, damage, liability, tax (other
than income, franchise or other taxes imposed on amounts paid
pursuant to Section 3.3), penalty, expense or claim of any kind
or nature whatsoever incurred without negligence, bad faith or
willful misconduct on its part, arising out of or in connection
with the acceptance or administration of this Guarantee
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Agreement, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The
Guarantee Trustee will not claim or exact any lien or charge on
any Guarantee Payments as a result of any amount due to it under
this Guarantee Agreement. This indemnity shall survive the
termination of this Agreement or the resignation or removal of
the Guarantee Trustee.
In no event shall the Guarantee Trustee be liable for any
indirect, special, punitive or consequential loss or damage of
any kind whatsoever, including, but not limited to, lost
profits, even if the Guarantee Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
In no event shall the Guarantee Trustee be liable for any
failure or delay in the performance of its obligations hereunder
because of circumstances beyond its control, including, but not
limited to, acts of God, flood, war (declared or undeclared),
terrorism, fire, riot, embargo, government action, including any
laws, ordinances, regulations, governmental action or the like
which delay, restrict or prohibit the providing of the services
contemplated by this Guarantee Agreement.
SECTION 3.5. Securities.
The Guarantee Trustee or any other agent of the Guarantee
Trustee, in its individual or any other capacity, may become the
owner or pledgee of Common or Preferred Securities.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. 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 or of any State
thereof, authorized to exercise corporate trust powers,
having a combined capital and surplus of at least fifty
million dollars ($50,000,000), subject to supervision or
examination by Federal or State authority and having an
office within the United States. If such corporation
publishes reports of condition at least annually, pursuant
to law or to the requirements of such supervising or
examining authority, then, for the purposes of this Section
4.1, 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.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Guarantee Trustee
shall immediately resign in the manner and with the effect set
out in Section 4.2(c).
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(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 in the manner and with the
effect set out in Section 4.2(c).
SECTION 4.2. Appointment, Removal and Resignation of the
Guarantee Trustee.
(a) Subject to Section 4.2(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 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 hereunder 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
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
4.2 within thirty (30) days after delivery to the Guarantor of
an instrument of resignation, the resigning Guarantee Trustee
may petition, at the expense of the Guarantor, 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.
ARTICLE V
GUARANTEE
SECTION 5.1. 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 or on behalf of the
Issuer), as and when due, regardless of any defense (except for
the defense of payment by the Issuer), right of set-off or
counterclaim which 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. The Guarantor shall give prompt written
notice to the Guarantee Trustee in the event it makes any direct
payment to the Holders hereunder.
(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
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full payment, when and as due, of any and all Obligations to such
Beneficiaries. This Guarantee is intended to be for the Beneficiaries
who have received notice hereof.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the
Guarantee Agreement and of any liability to which it applies or
may apply, presentment, demand for payment, any right to require
a proceeding first against the Guarantee Trustee, 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 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the
Guarantor under this Guarantee Agreement 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 Preferred 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 (other
than an extension of time for payment of Distributions that
results from the extension of any interest payment period
on the Notes as provided in the Indenture), Redemption
Price, Liquidation Distribution or any other sums payable
under the terms of the Preferred Securities or the
extension of time for the performance of any other
obligation under, arising out of, or in connection with,
the Preferred Securities;
(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 Preferred 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;
(e) any invalidity of, or defect or deficiency in,
the Preferred 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
5.3 that the obligations of the Guarantor hereunder shall
be absolute and unconditional under any and all
circumstances.
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There shall be no obligation of the Holders to give notice to,
or obtain the consent of, the Guarantor with respect to the
happening of any of the foregoing.
SECTION 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (a) this
Guarantee Agreement will be deposited with the Guarantee Trustee
to be held for the benefit of the Holders; (b) the Guarantee
Trustee has the right to enforce this Guarantee Agreement on
behalf of the Holders; (c) the Holders of a Majority in
Liquidation Amount of the Preferred 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 Agreement or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (d) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this
Guarantee Agreement, without first instituting a legal
proceeding against the Guarantee Trustee, the Issuer or any
other Person.
SECTION 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and
not of collection. This Guarantee Agreement will not be
discharged except by payment of the Guarantee Payments in full
(without duplication of amounts theretofore paid by the Issuer)
or upon distribution of Notes to Holders as provided in the
Trust Agreement.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of
the Holders against the Issuer in respect of any amounts paid to
the Holders by the Guarantor under this Guarantee Agreement and
shall have the right to waive payment by the Issuer pursuant to
Section 5.1; provided, that, the Guarantor shall not (except to
the extent required by mandatory provisions of law) be entitled
to enforce or exercise any rights 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
Agreement, if, at the time of any such payment, any amounts are
due and unpaid under this Guarantee Agreement. 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 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder
are independent of the obligations of the Issuer with respect to
the Preferred 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 Agreement
notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3.
SECTION 5.8. Enforcement.
A Beneficiary may enforce the Obligations of the Guarantor
contained in Section 5.1(b) directly against the Guarantor, and
the Guarantor waives any right or remedy to require that any
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action be brought against the Issuer or any other person or
entity before proceeding against the Guarantor.
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1. Dividends, Distributions and Payments.
So long as any Preferred Securities remain outstanding, if
there shall have occurred and be continuing an Event of Default
or the Guarantor shall have entered into an Extension Period as
provided for in the Indenture and such period, or any extension
thereof, shall have commenced and be continuing, then the
Guarantor may not (a) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make
liquidation payment with respect to, any of the Guarantor's
capital stock or (b) make any payment of principal of or any
interest or premium on or repay, repurchase or redeem any debt
securities of the Guarantor that rank pari passu in all respects
with or junior in interest to the Notes (other than (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 any one of 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 such Event of Default or the applicable
Extension Period, (ii) as a result of an 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 any class of 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 conversions or exchange provisions of such capital stock or
the security being converted or exchanged, (iv) any declaration
of a dividend in connection with any rights plan, the issuance
of rights, stock or other property under any rights plan or the
redemption or repurchase of rights pursuant thereto, or (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).
SECTION 6.2. Subordination.
The obligations of the Guarantor under this Guarantee
Agreement will constitute unsecured obligations of the Guarantor
and will rank subordinate and junior in right of payment to all
Senior Debt of the Guarantor.
SECTION 6.3. Pari Passu Guarantees.
(a) The obligations of the Guarantor under this Guarantee
Agreement shall rank pari passu with the obligations of the
Guarantor under any similar guarantee agreements issued by the
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Guarantor with respect to preferred securities (if any) similar
to the Preferred Securities, issued by trusts other than the
Issuer established or to be established by the Guarantor (if
any), in each case similar to the Issuer, including, without
limitation, the guarantee agreement issued by the Guarantor with
respect to the preferred securities issued by WesBanco, Inc.
Capital Trust I.
(b) 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
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 thereunder. This Guarantee
does not limit the incurrence or issuance of other secured or
unsecured debt of the Guarantor, including Senior Debt of the
Guarantor, under any indenture or agreement that the Guarantor
may enter into in the future or otherwise.
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate and be of no
further force and effect upon (a) full payment of the Redemption
Price of all Preferred Securities, (b) the distribution of Notes
to the Holders in exchange for all of the Preferred Securities
or (c) full payment of the amounts payable in accordance with
the Trust Agreement upon liquidation of the Issuer.
Notwithstanding the foregoing, this Guarantee Agreement will
continue to be effective or will be reinstated, as the case may
be, if at any time any Holder must restore payment of any sums
paid with respect to Preferred Securities or this Guarantee
Agreement. The obligations of the Guarantor under Sections 3.3
and 3.4 shall survive any such termination or the resignation
and removal of the Guarantee Trustee.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to
the benefit of the Holders of the Preferred Securities then
outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under
Article VIII of the Indenture and pursuant to which the
successor or assignee agrees in writing to perform the
Guarantor's obligations hereunder, the Guarantor shall not
assign its rights or delegate its
15
obligations hereunder without the prior approval of the Holders of
a Majority in Liquidation Amount of the Preferred Securities.
SECTION 8.2. Amendments.
Except with respect to any changes that do not adversely
affect the rights of the Holders in any material respect (in
which case no consent of the Holders will be required), this
Guarantee Agreement may only be amended with the prior approval
of the Guarantor, the Guarantee Trustee and the Holders of not
less than a Majority in Liquidation Amount of the Preferred
Securities. The provisions of Article VI of the Trust Agreement
concerning meetings or consents of the Holders shall apply to
the giving of such approval.
SECTION 8.3. Notices.
Any notice, request or other communication required or
permitted to be given hereunder shall be in writing, duly signed
by the party giving such notice, and delivered, telecopied or
mailed by first class mail as follows:
(a) if given to the Guarantor, to the address or
facsimile number set forth below or such other address,
facsimile number or to the attention of such other Person
as the Guarantor may give notice to the Guarantee Trustee
and the Holders:
WesBanco, Inc.
One Bank Plaza
Wheeling, WV 26003
Facsimile No.: (304) 234-9450
Attention: Robert H. Young
(b) if given to the Issuer, at the Issuer's address
or facsimile number set forth below or such other address,
facsimile number or to the attention of such other Person
as the Issuer may give notice to the Guarantee Trustee and
the Holders:
WesBanco Capital Trust II
One Bank Plaza
Wheeling, WV 26003
Facsimile No.: (304) 234-3450
Attention: Robert H. Young
(c) if given to the Guarantee Trustee, at the address
or facsimile number set forth below or such other address,
facsimile number or to the attention of such other Person
as the Guarantee Trustee may give notice to the Guarantor
and the Holders:
The Bank of New York
101 Barclay Street
New York, New York 10286
Facsimile No.: (212) 896-7299
Attention: Corporate Trust Administration
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(d) if given to any Holder, at the address set forth
on the books and records of the Issuer.
All notices hereunder 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 Agreement is solely for the benefit of the
Holders and is not separately transferable from the Preferred
Securities.
SECTION 8.5. Governing Law.
This Guarantee Agreement and the rights and obligations of
each party hereto, shall be construed and enforced in accordance
with and governed by the laws of the State of New York without
reference to its conflict of laws provisions (other than Section
5-1401 of the General Obligations Law).
SECTION 8.6. Submission to Jurisdiction.
ANY LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY PARTY
HERETO OR WITH RESPECT TO OR ARISING OUT OF THIS GUARANTEE
AGREEMENT MAY BE BROUGHT IN OR REMOVED TO THE COURTS OF THE
STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW YORK, OR OF THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK
(IN EACH CASE SITTING IN THE BOROUGH OF MANHATTAN). BY EXECUTION
AND DELIVERY OF THIS GUARANTEE AGREEMENT, EACH PARTY ACCEPTS,
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (AND
COURTS OF APPEALS THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT
OF OR IN CONNECTION WITH THIS GUARANTEE AGREEMENT.
SECTION 8.7. Counterparts.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute
but one and the same instrument.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
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IN WITNESS WHEREOF, the undersigned have executed this
Guarantee Agreement as of the date first above written.
WESBANCO, INC.
By:/s/ Robert H. Young
-----------------------------
Name: Robert H. Young
Title: Executive Vice
President and Chief
Financial Officer
THE BANK OF NEW YORK, not in its
individual capacity, but solely as
Guarantee Trustee
By:/s/ Van K. Brown
-------------------------------
Name: Van K. Brown
Title: Vice President
TABLE OF CONTENTS
ARTICLE I INTERPRETATION AND DEFINITIONS........................... 2
Section 1.1. Interpretation....................................... 2
Section 1.2. Definitions.......................................... 2
ARTICLE II REPORTS.................................................. 5
Section 2.1. List of Holders...................................... 5
Section 2.2. Periodic Reports to the Guarantee Trustee ........... 6
Section 2.3. Event of Default; Waiver............................. 6
Section 2.4. Event of Default; Notice............................. 6
ARTICLE III POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE....... 7
Section 3.1. Powers and Duties of the Guarantee Trustee........... 7
Section 3.2. Certain Rights of the Guarantee Trustee.............. 8
Section 3.3. Compensation......................................... 9
Section 3.4. Indemnity............................................ 9
Section 3.5. Securities........................................... 10
ARTICLE IV GUARANTEE TRUSTEE........................................ 10
Section 4.1. Guarantee Trustee; Eligibility....................... 10
Section 4.2. Appointment, Removal and Resignation of
the Guarantee Trustee................................ 11
ARTICLE V GUARANTEE................................................ 11
Section 5.1. Guarantee............................................ 11
Section 5.2. Waiver of Notice and Demand.......................... 12
Section 5.3. Obligations Not Affected............................. 12
Section 5.4. Rights of Holders.................................... 13
Section 5.5. Guarantee of Payment................................. 13
Section 5.6. Subrogation.......................................... 13
Section 5.7. Independent Obligations.............................. 13
Section 5.8. Enforcement.......................................... 13
ARTICLE VI COVENANTS AND SUBORDINATION.............................. 14
Section 6.1. Dividends, Distributions and Payments................ 14
Section 6.2. Subordination........................................ 14
Section 6.3. Pari Passu Guarantees................................ 14
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ARTICLE VII TERMINATION.............................................. 15
Section 7.1. Termination.......................................... 15
ARTICLE VIII MISCELLANEOUS............................................ 15
Section 8.1. Successors and Assigns............................... 15
Section 8.2. Amendments........................................... 15
Section 8.3. Notices.............................................. 16
Section 8.4. Benefit.............................................. 16
Section 8.5. Governing Law........................................ 17
Section 8.6. Submission to Jurisdiction........................... 17
Section 8.7. Counterparts......................................... 17
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