Chase Amended and Restated Credit Agreement
EXHIBIT
10.1
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Chase
|
Amended
and Restated
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This
agreement dated as of July 12, 2006, between JPMorgan Chase Bank, N.A.
(together
with its successors and assigns,
the
"Bank"),
having an office at ▇▇▇
▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, and
WesBanco, Inc., a West Virginia corporation, with its headquarters office
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (whether
one or more, and if more than one, individually and collectively, the
"Borrower").
| 1. |
Credit
Facilities.
|
| 1.1 |
Scope.
This agreement governs Facility A and, unless otherwise agreed to
in
writing by the Bank and the Borrower or prohibited by applicable
law,
governs all the Credit Facilities as defined
below.
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| 1.2 |
Facility
A (Line of Credit).
The Bank has approved a credit facility to the Borrower in the principal
sum not to exceed $35,000,000.00 in the aggregate at any one time
outstanding ("Facility A").
Credit under Facility A shall be repayable as set forth in a Line
of
Credit Note executed concurrently with this agreement, and any renewals,
modifications, extensions, rearrangements, restatements thereof and
replacements or substitutions therefor. The proceeds of Facility
A shall
be used to refinance all of Borrower’s indebtedness with SunTrust Bank,
N.A., and for the Borrower’s general corporate
purposes.
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| 2. |
Definitions.
As
used in this agreement, the following terms have the following respective
meanings:
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| 2.1 |
"Affiliate" means,
as to any Person, any other Person: (1) that directly or indirectly,
through one or more intermediaries, controls or is controlled by,
or is
under common control with, such Person; (2) that directly or indirectly
beneficially owns or holds five percent (5%) or more of any class
of
voting stock of such Person; or (3) five percent (5%) or more of
the
voting stock of which is directly or indirectly beneficially owned
or held
by the Person in question. The term "control" means to possess, directly
or indirectly, the power to direct the management and policies of
a
Person, whether through the ownership of voting securities, by contract,
or otherwise. The Bank is not under any circumstances to be deemed
an
Affiliate of Borrower or any of its Subsidiaries.
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| 2.2 |
"Authority
Documents"
means certificates of authority to transact business, certificates
of good
standing, borrowing resolutions (with secretary's certificate),
secretary's certificates of incumbency, and other documents, which
empower
and enable the Parties or their representatives to enter into the
Related
Documents or evidence such
authority.
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| 2.3 |
"Business
Day"
means a day when the main office of the Bank is open for the conduct
of
commercial lending business.
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| 2.4 |
"Credit
Facilities"
means all extensions of credit from the Bank to the Borrower, whether
now
existing or hereafter arising, including but not limited to those
described in Section 1 and
those extended contemporaneously with this agreement, including
any
and all renewals, modifications, extensions, rearrangements, restatements
thereof and replacements or substitutions
therefor.
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| 2.5 |
"Company" means
a corporation, partnership, limited liability company, joint venture,
joint stock association, association, bank, business trust or other
business entity.
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| 2.6 |
"GAAP"
means generally accepted accounting principles in effect in the United
States of America, consistently
applied.
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| 2.7 |
"Governmental
Authority"
means any foreign governmental authority, the United States of America,
any state of the United States and any political subdivision of any
of the
foregoing, and any agency, department, commission, board, bureau,
court or
other tribunal having jurisdiction over the Bank, the Borrower or
any
other Obligor, or any Subsidiary of the Borrower, or their respective
properties. Governmental Authority includes but is not limited to
the
Board of Governors of the Federal Reserve System ("FRB"),
the Federal Deposit Insurance Corporation (the "FDIC"),
any state banking regulatory or supervisory authority (a “State
Authority”),
the Office of Thrift Supervision (the "OTS"),
the Office of the Comptroller of the Currency (the "OCC")
and the Securities and Exchange Commission (the "SEC”).
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1
| 2.8 |
“Intercompany
Loan” means
the loan made by the Bank to the Borrower, made in accordance with
Regulation W of the Federal Reserve Board, and which loan is in the
principal amount of $3,500,000.00 and is secured by marketable securities
and other assets of Borrower.
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| 2.9 |
"Indebtedness"
means and includes (without duplication)
(i) all items arising from the borrowing of money, which according
to
GAAP, would be included in determining total liabilities as shown
on the
balance sheet; (ii) all indebtedness secured by any Lien on property
owned
by the Borrower or the Subsidiaries of the Borrower whether or not
such
indebtedness shall have been assumed; (iii) all guarantees and similar
contingent liabilities in respect to indebtedness of others; and
(iv) all
other interest-bearing obligations evidencing indebtedness to others
for
borrowed money.
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| 2.10 |
"Legal
Requirement"
means any law, ordinance, decree, requirement, order, judgment, rule,
regulation (or interpretation of any of the foregoing) of, and the
terms
of any list, license or permit issued by, any Governmental
Authority.
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| 2.11 |
"Liabilities"
means all debts, obligations, indebtedness and liabilities of every
kind
and character of the Borrower to the Bank, its
successors and assigns, now existing or later arising, whether individual,
joint and several, contingent or otherwise, including, without limitation,
all liabilities, interest, costs and fees, arising under or from
any note,
open account, overdraft, credit card, lease, Rate Management Transaction,
letter of credit application, endorsement, surety agreement, guaranty,
acceptance, foreign exchange contract or depository service contract,
whether payable to the Bank or to a third party and subsequently
acquired
by the Bank, any monetary obligations (including interest) incurred
or
accrued during the pendency of any bankruptcy, insolvency, receivership
or
other similar proceedings, regardless of whether allowed or allowable
in
such proceeding, and all renewals, extensions, modifications,
consolidations, rearrangements, restatements, replacements, restatements
or substitutions of any of the foregoing.
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| 2.12 |
"Lien" means
any mortgage, deed of trust, pledge, charge, encumbrance, security
interest, collateral assignment or other lien or restriction of any
kind,
whether based on common law, constitutional provision, statute or
contract.
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| 2.13 |
"Material
Adverse Effect"
means an effect which is reasonably determined by the Bank to be
a
material adverse effect on (a) the business, assets, operations,
prospects or condition, financial or otherwise, of the Borrower and
the
Subsidiaries taken as a whole, (b) the ability of the Borrower to
perform any of its obligations under this Agreement or any of the
other
Related Documents, or (c) the rights of or benefits available to the
Bank under this Agreement or any of the Related
Documents
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| 2.14 |
"Notes"
means
each and all promissory notes, instruments and/or other agreements
evidencing the terms and conditions of any of the Credit
Facilities.
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| 2.15 |
"Obligor" means
each Borrower and any guarantor, surety, co-signer, general partner
or
other Person who may now or hereafter be obligated to pay all or
any part
of the Liabilities.
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| 2.16 |
"Organizational
Documents"
means, with respect to a corporation, the certificate of incorporation
or
formation, articles of incorporation and bylaws of such corporation;
with
respect to a limited liability company, the articles of organization,
regulations, operating agreement and other documents establishing
or
governing such entity, with respect to a partnership, joint venture,
or
trust, the agreement, certificate or instrument establishing or governing
such entity; in each case including all modifications and supplements
thereof as of the date of the Related Document referring to such
Organizational Document and any and all future modifications thereof
which
are consented to by the Bank.
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| 2.17 |
"Parties" mean
all Persons other than the Bank executing any Related
Document.
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2
| 2.18 |
“Permitted
Acquisition” means
the purchase of the
capital stock of, or equity interest in another Company, or of the
assets
of another Company, provided that no Event of Default or event which,
with
the giving of notice or the lapse of time or both would constitute
an
Event of Default, has occurred and is continuing or would occur as
a
result of such acquisition, and provided, further, that all purchases
of the
capital stock of, or equity interests in another Company, or of the
assets
of another Company, during any period of twelve consecutive calendar
months shall not in the aggregate exceed thirty-five and No/ 100
percent
(35.00%) of
the consolidated stockholders’ equity of the Borrower, determined in
accordance with GAAP.
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| 2.19 |
"Person"
means any individual, Company, trust, unincorporated organization,
Governmental Authority or any other form of
entity.
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| 2.20 |
"Proper
Form"
means in form and substance satisfactory to the
Bank.
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| 2.21 |
"Rate
Management Transaction"
means any transaction (including an agreement with respect thereto)
that
is a rate swap, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collar transaction, forward
transaction, currency swap transaction, cross-currency rate swap
transaction, currency option, derivative transaction or any other
similar
transaction (including any option with respect to any of these
transactions) or any combination thereof, whether linked to one or
more
interest rates, foreign currencies, commodity prices, equity prices
or
other financial measures.
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| 2.22 |
"Related
Documents"
means this agreement, the Notes, all loan agreements, credit agreements,
reimbursement agreements, security agreements, mortgages, deeds of
trust,
pledge agreements, assignments, guaranties, and any other instrument
or
document executed in connection with this agreement or in connection
with
any of the Liabilities.
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| 2.23 |
"Subordinated
Debt"
means any Indebtedness subordinated to Indebtedness due the Bank
pursuant
to a written subordination agreement in Proper Form by and among
the Bank,
subordinated creditor and the Borrower which at a minimum must prohibit:
(a) any action by subordinated creditor which will result in an occurrence
of an Event of Default or default under this agreement, the subordination
agreement or the subordinated Indebtedness; and (b) upon the happening
of
any Event of Default or default under any Related Documents, the
subordination agreement, or any instrument evidencing the subordinated
Indebtedness: (i) any payment of principal and interest on the
subordinated Indebtedness; (ii) any act to compel payment of principal
or
interest on subordinated Indebtedness; and (iii) any action to realize
upon any collateral securing the subordinated
Indebtedness.
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| 2.24 |
"Subsidiary"
means, as to a particular parent Company, any Company of which 50%
or more
of the indicia of equity rights is at the time directly or indirectly
owned by such parent Company or by one or more Persons controlled
by,
controlling or under common control with such parent Company. For
purposes
of this agreement, the Borrower's Subsidiaries include but are not
limited
to each of those listed on Annex I.
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| 3. |
Conditions
Precedent.
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| 3.1 |
Conditions
Precedent to Initial Extension of Credit.
Before the first extension of credit governed by this agreement,
whether
by disbursement of any loan, issuance of any letter of credit, or
otherwise, the Borrower shall deliver to the Bank in Proper
Form:
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A. Related
Documents.
The
Notes, and as applicable, the letter of credit applications, the security
agreements, the pledge agreements, financing statements, mortgages or deeds
of
trust, the guaranties, the subordination agreements, and any other loan
documents which the Bank may reasonably require to give effect to the
transactions described in this agreement;
B. Organizational
and Authority Documents. The
Organizational and Authority Documents of the Borrower and any other Party
executing the Related Documents.
C. Payoff
Existing Debt/ Release of Liens. Full
payment and satisfaction of all debt of the Borrower and each of its
Subsidiaries other than the Indebtedness permitted by Section 5.1 hereof, and
the release and satisfaction of all Liens other than the Liens permitted by
Section 5.2 hereof, which may occur prior to or contemporaneously with the
initial funding under Facility A.
3
| 3.2 |
Conditions
Precedent to Each Extension of Credit.
Before any extension of credit governed by this agreement, whether
by
disbursement of a loan, issuance of a letter of credit or otherwise,
the
following conditions must be
satisfied:
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A. Representations.
The
representations of the Borrower and any other Parties to the Related Documents
are true on and as of the date of the extension of credit;
B. No
Event of Default.
No
default or Event of Default has occurred under this agreement,
the
Notes or any other Related Documents and
is
continuing or would result from the extension of credit, and no event has
occurred which would constitute the occurrence of any default or any Event
of
Default but for the lapse of time until the end of any grace or cure
period.
| 3.3 |
Additional
Approvals, Opinions, and Documents.
The Bank has received any other approvals, opinions and documents
as it
may reasonably request.
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| 3.4 |
Satisfaction
of Conditions Precedent.
The acceptance of the proceeds and benefits of the proceeds of any
Credit
Facility shall constitute a representation and warranty by the Parties
to
the Bank that all of the conditions specified in this Article 3 for
that
Credit Facility have been satisfied as of that time.
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| 4. |
Affirmative
Covenants. The
Borrower agrees to do, and will cause each of its Subsidiaries to
do, each
of the following:
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| 4.1 |
Financial
information.
Furnish
to Bank in Proper Form (1) the financial statements prepared in conformity
with GAAP on consolidated and consolidating bases and the other
information described in, and within the times required by, Exhibit
A,
Reporting Requirements, Financial Covenants and Compliance Certificate
attached hereto and incorporated herein by reference; (2) within
the time
required by Exhibit
A,
a
certificate in the form of Exhibit
A
signed or otherwise authenticated and certified by the chief financial
officer or president of the Party required to submit the information;
(3)
to the extent permitted by applicable Legal Requirements, promptly
after
the same are available, copies of each annual report or financial
statement or other report or communication sent by the Borrower to
the
shareholders of the Borrower; each registration statement which the
Borrower or any Subsidiary may file with any Governmental Authority
or
with any securities exchange; (4) promptly after a request is submitted
to
the appropriate Governmental Authority, any request for waiver of
funding
standards or extension of amortization periods with respect to any
employee benefit plan; and (5) such other information relating to
the
financial condition, prospects and affairs of the Borrower, each
other
Obligor and their respective Subsidiaries as the Bank may reasonably
request from time to time. Nothing in this agreement shall require
the
Borrower to provide any information to the Bank which the Borrower,
any
other Obligor or any of their respective Subsidiaries is prohibited
by
Legal Requirements to disclose. All proceeds of any collateral shall
be
deposited in an account maintained with Bank.
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| 4.2 |
Existence. Maintain
its existence and business operations as presently in effect in accordance
with all applicable Legal Requirements, pay its debts and obligations
when
due under normal terms, and pay on or before their due date, all
taxes,
assessments, fees and other governmental monetary obligations, except
as
they may be contested in good faith if they have been properly reflected
on its books and, at the Bank's request, adequate funds or security
have
been pledged to insure payment.
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| 4.3 |
Financial
Records.
Maintain proper books and records of account, in accordance with
GAAP, and
consistent with financial statements previously submitted to the
Bank.
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| 4.4 |
Inspection.
Permit the Bank
or
its representatives, at those times and at the intervals as the Bank
may
reasonably require: (1) to inspect, examine, audit and copy its business
records, and to discuss its business, operations, prospects and financial
condition with its officers and accountants; and (2) to inspect its
business operations and sites; provided, however, that nothing in
this
agreement shall give the Bank the right to inspect or copy any records
of
(a) any examination report of the Borrower’s supervisory Governmental
Authority or other information that the Borrower or any of its
Subsidiaries are prohibited by any Legal Requirement from disclosing
without the consent of the supervising Governmental Authority, or
(b) the
confidential information of any particular customer of Borrower or
any of
its Subsidiaries that the Borrower or any of its Subsidiaries are
prohibited from disclosing by any Legal Requirement or by any applicable
confidentiality agreement with any such customer; provided, however,
the
Borrower will, and will cause each of its Subsidiaries to, cooperate
in
obtaining any consent of the supervising Governmental Authority or
any
particular customer should the Bank request such
disclosure.
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4
| 4.5 |
Notices
of Claims, Litigation, Defaults, etc.
Promptly inform the Bank in writing of (1) all existing and threatened
litigation, claims, investigations, administrative proceedings and
similar
actions affecting the Borrower
or any Subsidiary of the Borrower
which could materially affect the
business, property, affairs, prospects or financial
condition of Borrower or any of its Subsidiaries; (2) the occurrence
of
any default or Event of Default and the circumstances which give
rise to
the Bank's option to terminate the Credit Facilities to the extent
the
disclosure does not violate any Legal Requirement; (3) any material
additions to or material changes in its locations or businesses,
unless
the Borrower has provided such information in writing to the Bank
prior to
making such addition or such change; and (4) any alleged breach of
any
provision of this agreement or of any other Related Documents by
the
Bank.
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| 4.6 |
Title
to Assets and Property.
Maintain good and marketable title to all of its assets and properties
and
defend its assets and properties against all claims and demands of
all
Persons at any time claiming any interest in
them.
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| 4.7 |
Additional
Assurances.
Promptly make, execute and deliver any and all agreements, documents,
instruments and other records that the Bank may reasonably request
to
evidence any of the Credit Facilities, cure any defect in the execution
and delivery of any of the Related Documents, perfect any Lien, comply
with any Legal Requirement applicable to the Bank or the Credit Facilities
or more fully to describe particular aspects of the agreements set
forth
or intended to be set forth in any of the Related
Documents.
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|
4.8
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Ownership
of Stock. Borrower
shall at all times maintain ownership of (1) one hundred percent
(100.00%)
of the capital stock of of each of its financial institution Subsidiaries,
(2) cause the Bank to at all times maintain ownership of one hundred
percent (100.00%) of the capital stock of each of Wesbanco Asset
Management, Inc., and Wesbanco Insurance Services, Inc., and (3)
cause
Wesbanco Asset Management, Inc to at all times maintain ownership
of one
hundred percent (100.00%) of the voting capital stock of Wesbanco
Services, Inc.
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|
4.9
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Capitalization
Status. Borrower
shall maintain at all times each financial institution Subsidiary’s
categorization as ‘Well Capitalized’ as defined by the regulations of each
respective Subsidiary’s primary federal Government
Authority.
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|
4.10
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Financial
Institution Subsidiary’s Consolidated Non-Performing Assets
Ratio.
Borrower shall at all times maintain a “Consolidated
Non-Performing Asset Ratio”
of
not greater than one and 75/100 percent (1.75%). As used in this
Section,
the term “Consolidated
Non-Performing Assets Ratio”
means the ratio, determined on a consolidated basis for the Borrower,
of
(i) the sum of “Non-Performing
Assets”
plus“OREO,”
to
(ii) the sum of “Total
Loans” plus
“OREO.”
As
used in this Section, the term “Non-Performing
Assets” means
the sum of all loans classified as past due 90 days or more and still
accruing interest, all loans classified a ‘non-accrual’ and no longer
accruing interest, all loans classified as ‘restructured loans and
leases’, and all other ‘non-performing loans.’ As used in this Section,
the term “Total
Loans” means
the total of all performing and non-performing loans. As used in
this
Section, the term “OREO”
means the book value, net of accumulated depreciation, of all other
real
estate owned by the financial institutions Subsidiary and its Subsidiaries
for which this ratio is being computed; provided, however, that this
term
excludes all real estate which is occupied and used by the financial
institutions Subsidiary and its Subsidiaries in the ordinary course
of
business. The ratio set forth in this Section shall be measured quarterly
and shall be determined from the applicable quarterly financial statements
filed with the applicable Governmental Authority.
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| 5. |
Negative
Covenants.
Without the prior written consent of the Bank, the
Borrower will not and no Subsidiary of the Borrower
will:
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5
| 5.1 |
Indebtedness.
Create, assume, incur, have outstanding, or in any manner become
liable in
respect of any Indebtedness, other than (1) Indebtedness incurred
in the
ordinary course of business (including, without limitation, Federal
Home
Loan Bank (or regional member bank) borrowings, Federal Reserve Board
(or
regional member bank) Discount Window Program borrowings, unsecured
Fed
Funds lines, and Reverse Repurchase Agreements) and in accordance
with
applicable Legal Requirements and safe and sound banking practices;
(2)
Indebtedness reflected in the Borrower’s financial statements dated March
31, 2006; (3) additional Indebtedness contracted for after the date
of
this agreement that does not exceed the amounts reflected in those
financial statements described in (2) above; (4) upon the approval
of the
Bank, Subordinated Debt; (5) trust preferred securities issued after
the
date of this Agreement, provided that no
Event of Default or event which, with the giving of notice or the
lapse of
time or both would constitute an Event of Default, has occurred and
is
continuing or would occur as a result of such issuance; (5)
the Intercompany Loan; (6) sale and repurchase obligations among
(a)
Wesbanco Bank, Inc., and (b) either one or both of Wesbanco Asset
Management, Inc., or Wesbanco Services, Inc., with respect to any
loan
sales among them in the ordinary course of business (to the extent
that
any such sale and repurchase obligations may constitute “Indebtedness”);
and (7) short term liabilities, including accrued interest, accrued
and
deferred tax liabilities, and current pension liabilities (to the
extent
that any of the foregoing may constitute
“Indebtedness”).
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| 5.2 |
Liens.
Create,
assume, incur, suffer or permit to exist any Lien of any kind or
character
upon or with respect to any of its assets or properties, whether
now owned
at the date hereof or later acquired, or assign or otherwise convey
any
right to receive income, other
than
(1) Liens in favor of the Bank, (2) existing Liens disclosed in writing
to
the Bank, (3) Liens incurred in the ordinary course of business securing
current non-delinquent liabilities for taxes, worker’s compensation,
unemployment insurance, social security, and pension liabilities,
(4)
existing mortgage liens on the real estate of the Borrower and the
Borrower’s Subsidiaries securing the existing mortgage debt related
thereto and which is presently secured thereby; (5) Liens against
collateral currently pledged to secure the Intercompany Loan; (6)
liens
granted in the ordinary course of business to the Federal Home Loan
Bank
(or regional member bank) securing permitted Federal Home Loan Bank
(or
regional member bank) borrowings; (7) liens granted in the ordinary
course
of business to the Federal Reserve Board (or regional member bank)
securing permitted Federal Reserve Board (or regional member bank)
Discount Window borrowings; and (8) liens granted in the ordinary
course
of business by Wesbanco Bank, Inc. to Wesbanco Asset Management,
Inc., and
Wesbanco Services, Inc. in promissory notes, chattel paper, and other
loan
documents remaining in Wesbanco Bank, Inc.’s possession with respect to
loans sold to Wesbanco Asset Management, Inc., and Wesbanco Services,
Inc.
in the ordinary course of business, and sale and repurchase obligations
among (a) Wesbanco Bank, Inc., and (b) either one or both of Wesbanco
Asset Management, Inc., or Wesbanco Services, Inc., with respect
to any
loan sales among them in the ordinary course of business (to the
extent
that any such sale and repurchase obligations may constitute a
“Lien”).
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| 5.3 |
Disposal
of Interests in the Subsidiaries. Dispose
of any stock or other interest (whether by sale, assignment, lease
or
otherwise) in
the equity of (1) any of its financial institution Subsidiaries,
whether
now owned or hereafter acquired, (2) Wesbanco Asset Management, Inc.,
(3)
Wesbanco Services, Inc., or (3) any other material Subsidiary, whether
now
owned or hereafter acquired.
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| 5.4 |
Merger
or Consolidations.
(1) Dissolve; (2) merge or consolidate with any Person; (3) lease,
sell or
otherwise convey a material part of its assets or business outside
the
ordinary course of its business; (4) lease, purchase, or otherwise
acquire
a material part of the assets of any other Person, except in the
ordinary
course of its business and except for Permitted Acquisitions; or
(5) agree
to do any of the foregoing.
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| 5.5 |
Use
of Proceeds.
Use, or permit any proceeds of the Credit Facilities to be used,
directly
or indirectly, for the purpose of "purchasing or carrying any margin
stock" within the meaning of Federal Reserve Board Regulation U
("Regulation
U").
At the Bank's request, the Borrower will furnish a completed Federal
Reserve Board Form U-1.
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| 5.6 |
Affiliate
Transactions.
Enter into any transaction or agreement with any Affiliate except
(1) the
Intercompany Loan (2) any transaction upon terms substantially similar
to
those obtainable from wholly unrelated sources and otherwise in compliance
with any applicable Legal Requirements, and (3) any transaction or
agreement made in the ordinary course of business, in compliance
with any
applicable Legal Requirements, and which does not or will not have
or
produce any Material Adverse
Effect.
|
| 5.7 |
Subsidiaries.
Form,
create or acquire any Subsidiary that is not wholly owned by the
Borrower.
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| 5.8 |
Continuity
of Operations.
(1) Engage in any business activities substantially different from
those
in which it is presently engaged; or (2) cease operations, liquidate,
change its name, dissolve, or sell any assets out of the ordinary
course
of business.
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6
| 5.9 |
Conflicting
Agreements. Enter
into any agreement containing any provision which would be violated
or
breached by the performance of the Borrower’s obligations under this
agreement or any of the other Related Documents.
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| 5.10 |
No
Other Negative Pledge.
Enter into any agreement with any Person other than the Bank which
prohibits or limits the ability of the
Borrower
or
any of its Subsidiaries to create or permit to exist any Lien on
any of
its property, assets or revenues, whether now owned or hereafter
acquired.
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| 5.11 |
Government
Regulation.
(1) Be or become subject at any time to any Legal Requirement (including,
without limitation, the U.S. Office of Foreign Asset Control list)
that
prohibits or limits the Bank from making any advance or extension
of
credit to the Borrower or from otherwise conducting business with
the
Borrower; or (2) fail to provide documentary and other evidence of
the
Borrower’s identity as may be requested by the Bank at any time to enable
the Bank to verify the Borrower’s identity or to comply with any Legal
Requirement, including, without limitation, Section 326 of the USA
Patriot
Act of 2001, 31 U.S.C. Section
5318.
|
| 6. |
Representations,
Warranties and Covenants by the Borrower. To
induce the Bank to enter into this agreement and to extend credit
or other
financial accommodations under the Credit Facilities,
the Borrower represents and warrants as of the date of this agreement
and
as of the date of each request for credit under the Credit Facilities
that each of the following statements is and shall remain true and
correct
throughout the term of this agreement and until all Credit Facilities
and
all amounts owing under the Notes and other Related Documents are
paid in
full:
|
| 6.1 |
Organization
and Status. (1)
The Borrower is a West Virginia corporation registered as a federal
bank
holding company under the laws of the United States, and the Borrower
and
each of its Subsidiaries are each duly organized, validly existing
and in
good standing under the laws of its organization and is duly qualified
to
do business and is in good standing under the laws of each state
in which
the ownership of its properties and the nature and extent of the
activities transacted by it makes such qualification necessary. (2)
The
Borrower has no Subsidiary other than those listed on Annex I.
|
| 6.2 |
Financial
Statements.
All financial statements delivered to the Bank are complete and correct
and fairly present, in accordance with generally accepted accounting
principles, consistently applied, the financial condition and the
results
of operations of the Borrower and each Subsidiary, as at the dates
and for
the periods indicated. No material adverse change has occurred in
the
assets, liabilities, financial condition, business or affairs of
the
Borrower or any of its Subsidiaries since the dates of the Borrower’s
financial statements dated March 31, 2006. Neither the Borrower nor
any of
its Subsidiaries is subject to any instrument or agreement materially
and
adversely affecting its financial condition, business or affairs.
|
| 6.3 |
Enforceability.
This agreement, the Notes, and the other Related Documents have been
duly
authorized, executed and delivered by the Parties thereto and are
valid
and binding agreements of the Parties, enforceable according to their
terms, except as the enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights
generally and subject to general principles of equity. The execution,
delivery and performance of this agreement, the Notes and the other
Related Documents and the obligations that they impose, do not violate
any
Legal Requirement, conflict with any agreement by which any Party
is
bound, or require the consent or approval of any Governmental Authority
or
other third party which has not been promptly obtained in connection
with
the execution and delivery of this agreement and the other Related
Documents
|
| 6.4 |
Litigation.
There is no litigation, claim, investigation, administrative proceeding
or
similar action (including those for unpaid taxes) against the Borrower,
any of its Subsidiaries or any other Obligor pending or threatened,
and no
other event has occurred which may in any one case or in the aggregate
materially adversely affect the Borrower, any of its Subsidiaries,
any
other Obligor or any of their respective financial condition and
properties, other than litigation, claims, or other events, if any,
that
have been disclosed to and acknowledged by the Bank in writing or
disclosed in the Borrower’s March 31, 2006, financial
statements.
|
|
6.5
|
Title
and Rights. The
Borrower and each of its Subsidiaries have good and marketable title
to
its properties, free and clear of any Lien except for Liens disclosed
in
writing to the Bank prior to the date of this agreement, and those
permitted by this agreement and the other Related Documents, including,
without limitation, existing mortgage liens on the real estate of
the
Borrower and the Borrower’s Subsidiaries securing the existing mortgage
debt related thereto and which is presently secured thereby. The
Borrower
and each of its Subsidiaries possess all permits, licenses, patents,
trademarks and copyrights required to conduct their respective businesses.
|
7
| 6.6 |
Regulation
U; Business Purpose.
None of the proceeds of any of the Credit Facilities will be used
to
purchase or carry, directly or indirectly, any margin stock or for
any
other purpose which would make this credit a "purpose credit" within
the
meaning of Regulation U or not an exempt transaction under Regulation
U.
All Credit Facilities will be used for business purposes and for
the
express purposes that the Borrower has informed the Bank that it
will use
the credit. None of the stock of the Borrower's Subsidiaries is margin
stock as defined in Regulation U
|
| 6.7 |
Capital
Stock of the Borrower's Subsidiaries. (1)
All of the issued and outstanding capital stock of each of the Borrower's
Subsidiaries (the "Borrower's Current Subsidiaries'
Shares")
has been duly authorized, legally and validly issued, fully paid
and
nonassessable, and the Borrower's Current Subsidiaries' Shares are
owned
by the Borrower, free and clear of all Liens, except as may exist
for the
benefit of the Bank; (2) none of the Borrower's Current Subsidiaries'
Shares have been issued in violation of any shareholder's preemptive
rights; and (3) there are, as of the date of this agreement, no
outstanding options, rights, warrants, plans, understandings or other
agreements or instruments obligating the Borrower to issue, deliver
or
sell, or cause to be issued, delivered or sold, or contemplating
or
providing for the issuance of, additional shares of the capital stock
of
the Borrower's Subsidiaries, or obligating the Borrower or the Borrower's
Subsidiaries to grant, extend or enter into any such agreement or
commitment.
|
| 6.8 |
Regulatory
Enforcement Actions.
Except as disclosed by the Borrower to the Bank, none of the Borrower,
or any of its Subsidiaries, or any of their respective officers or
directors, is now operating under any effective written restrictions
agreed to by the Borrower or by any of its Subsidiaries, or agreements,
memoranda, or written commitments by the Borrower or by any of its
Subsidiaries (other than restrictions of general application) imposed
or
required by any Governmental Authority nor are any such restrictions
threatened or agreements, memoranda or commitments being sought by
any
Governmental Authority.
|
| 6.9 |
No
Liens.
Except for Liens expressly permitted by this Agreement, the Borrower
is
not a party to any agreement, instrument of undertaking or subject
to any
other restriction pursuant to which the Borrower has placed, or will
be
required to place (or under which any other Person may place), a
Lien upon
any of its properties securing Indebtedness, either upon demand or
upon
the happening of a condition, with or without any
demand.
|
| 6.10 |
Compliance.
The Borrower and each of its Subsidiaries has filed all applicable
tax
returns and paid all taxes shown thereon to be due, except those
for which
extensions have been obtained and those which are being contested
in good
faith and for which adequate reserves have been established. The
Borrower
and each of its Subsidiaries is in compliance with all applicable
material
Legal Requirements and manages and operates (and will continue to
manage
and operate) its business in accordance with good industry practices.
Neither the Borrower nor any of its Subsidiaries is in default in
the
payment of any other Indebtedness or under any agreement to which
it is a
party.
|
| 6.11 |
No
Claims Against the Bank.
There are no defenses or counterclaims, offsets or adverse claims,
demands
or actions of any kind, personal or otherwise, that the Borrower
or any
other Obligor could assert against the Bank, whether in connection
with
this agreement, any of the Credit Facilities, or
otherwise.
|
| 6.12 |
Statements
by Others.
All statements made by or on behalf of the Borrower, any of its
Subsidiaries or any other of the Parties in connection with any Related
Document constitute the joint and several representations and warranties
of the Borrower under this
agreement.
|
| 6.13 |
Environment.
The Borrower and each of its Subsidiaries have complied with applicable
Legal Requirements in each instance in which any of them have generated,
handled, used, stored or disposed of any hazardous or toxic waste
or
substance, on or off its premises (whether or not owned by any of
them).
Neither the Borrower nor any of its Subsidiaries has any material
contingent liability for non-compliance with environmental or hazardous
waste laws. Neither the Borrower nor any of its Subsidiaries has
received
any notice that it or any of its property or operations does not
comply
with, or that any Governmental Authority is investigating its compliance
with, any environmental or hazardous waste
laws.
|
8
|
6.14
|
Continuing
Representations.
Each request for an advance or conversion or continuation of an advance
under any of the Credit Facilities shall constitute a representation
and
warranty by the Borrower that all of the representations and warranties
set forth in this agreement shall be true and correct on and as of
such
date with the same effect as though such representations and warranties
had been made on such date, except to the extent that such representations
and warranties are stated to expressly relate solely to an earlier
date.
|
| 7 |
Default/Remedies/Cure
Periods.
|
| 7.1 |
Events
of Default. Each
of
the following is an "Event
of Default":
|
|
A.
|
The
Borrower,
any of its Subsidiaries
or
any other Obligor fails to pay when due any amount payable (1) under
the
Notes or with respect to any of the other Liabilities; or (2) under
any
agreement or instrument evidencing Indebtedness to any creditor other
than
the Bank.
|
|
B.
|
The
Borrower, any of its Subsidiaries or any other Obligor (1) fails
to
observe or perform or otherwise violates, or is in default of, any
other
term, covenant, condition or agreement of any of the Notes or other
Related Documents; (2) makes any materially incorrect or misleading
representation, warranty, or certificate to the Bank; (3) makes any
materially incorrect or misleading representation in any financial
statement or other information delivered to the Bank; or (4) defaults
under the terms of any agreement or instrument relating to any
Indebtedness
(other than the Indebtedness
evidenced by the Notes) and the effect of such default will allow
the
creditor to declare the Indebtedness
due before its maturity; provided , however, that the violation that
has
occurred and is continuing as of the date of this Agreement with
respect
to the Return on Average Assets financial covenant set forth in the
loan
documents between the Borrower and SunTrust Bank, N.A. shall not
be a
default hereunder provided that all Indebtedness of the Borrower
to
SunTrust Bank, N.A. is fully paid-off contemporaneously with the
execution
and delivry of this Agreement.
|
|
C.
|
In
the event (1) there is a default under the terms of any Related Document
that is not cured within any cure period specified therein; or (2)
the
Borrower fails to comply with, or pay, or perform under any agreement,
now
or hereafter in effect, between the Borrower and JPMorgan
Chase & Co.,
or any of its Subsidiaries or Affiliates or their successors and
assigns
and the failure to comply with, pay or perform is not cured within
any
cure period specified in such
agreement.
|
|
D.
|
The
Borrower, any of its Subsidiaries or any other Obligor becomes insolvent
or unable to pay its debts as they become
due.
|
|
E.
|
The
Borrower, any of its Subsidiaries or any other Obligor (1) makes
an
assignment for the benefit of creditors; (2) consents to the appointment
of a custodian, receiver, or trustee for itself or for a substantial
part
of its assets; or (3) commences any proceeding under any bankruptcy,
reorganization, liquidation, insolvency or similar laws of any
jurisdiction.
|
|
F.
|
A
custodian, receiver, conservator or trustee is appointed for the
Borrower,
any Subsidiary of the Borrower or any other Obligor or for a substantial
part of its assets.
|
|
G.
|
Proceedings
are commenced against the Borrower, any Subsidiary of the Borrower
or any
other Obligor under any bankruptcy, reorganization, liquidation,
or
similar laws of any jurisdiction, and they remain undismissed for
thirty
(30) days after commencement; or the Borrower any Subsidiary of the
Borrower or any other Obligor consents to the commencement of those
proceedings.
|
|
H.
|
If
any of the Borrower's assets having an aggregate fair market value
in
excess of $1,000,000.00, in the Bank’s reasonable estimate, are attached,
seized, subjected to a writ, or are levied upon or become subject
to any
Lien (with the exception of statutory Liens) or come within the possession
of any receiver, trustee, custodian or assignee for the benefit of
creditors; or if a notice of Lien, levy or assessment is filed of
record
or given to the Borrower or any Subsidiary of the Borrower with respect
to
all or any of their respective assets by any Governmental
Authority.
|
9
|
I.
|
The
FRB, the FDIC, the OCC, the OTS, the SEC, any State Authority, or
any
other Governmental Authority charged with the regulation of bank
holding
companies or financial institutions issues
to the Borrower or any of its Subsidiaries, or initiates through
formal
proceedings any action, suit or proceeding to obtain against, impose
on or
require from the Borrower or any of its Subsidiaries a cease and
desist
order or similar regulatory order, injunction, temporary restraining
order, the assessment of civil monetary penalties in an amount greater
than $1,000,000.00, articles of agreement that have any Material
Adverse
Effect, a memorandum of understanding that has any Material Adverse
Effect, a capital directive, a capital restoration plan, restrictions
(other than board resolutions adopted at the direction of a Governmental
Authority) that prevent or as a practical matter impair the payment
of
dividends by any of its Subsidiaries, the payments of any Indebtedness
by
the Borrower or the conduct of any or all of the business affairs
of the
Borrower or any of its Subsidiaries, restrictions (other than board
resolutions adopted at the direction of a Governmental Authority)
that
make the payment of the dividends by any of its Subsidiaries, the
payment
of Indebtedness by the Borrower or the conduct of any or all of the
business affairs of the Borrower or any of its Subsidiaries subject
to
prior regulatory approval, a notice or finding under subsection 8(a)
of
the Federal Deposit Insurance Act, as amended, or any similar enforcement
action, measure or proceeding.
|
|
J.
|
If
the Borrower or any of its Subsidiaries continues to be in default
in any
payment of principal or interest for any other indebtedness for borrowed
money or in default in the performance of any other term, condition
or
covenant contained in any agreement (including, but not limited to,
an
agreement in connection with the acquisition of capital equipment
on a
title retention or net lease basis), under which any such indebtedness
is
created the effect of which default in performance is to cause or
permit
the holder of the indebtedness to cause the indebtedness to become
due
prior to its stated maturity.
|
|
K.
|
A
change of control of the Borrower shall occur or the Borrower shall
have
the option, exercisable on at least one Business Day’s prior notice, upon
the consummation, in whole or in part, of any transaction effecting
any
change of control of the Borrower that, in either case, has been
approved
as such, or is required to be approved by any Governmental
Agency.
|
|
L.
|
A
material adverse change occurs in the assets, liabilities, actual
or
prospective financial condition, business or affairs of the Borrower,
any
of its Subsidiaries, or any other
Obligor.
|
| 7.2 |
Remedies.
At
any time after the occurrence of an Event of Default, the Bank may
do one
or more of the following: (1) cease permitting the Borrower to incur
any
Liabilities; (2) terminate any commitment of the Bank evidenced by
any of
the Notes; (3) declare any of the Notes to be immediately due and
payable,
without notice of acceleration, intention to accelerate, presentment
and
demand or protest or notice of any kind, all of which are hereby
expressly
waived; (4)
exercise
all
rights of setoff that the Bank may have contractually, by law, in
equity
or otherwise; and
(5) exercise any and all other rights pursuant to any of the Related
Documents, at law, in equity or otherwise. The rights of the Bank
under
this agreement and the other Related Documents are in addition to
other
rights (including without limitation, other rights of setoff) the
Bank may
have contractually, by law, in equity or otherwise, all of which
are
cumulative and hereby retained by the Bank. Each
Obligor agrees to stand still with regard to the Bank's enforcement
of its
rights.
|
| 8 |
Miscellaneous.
|
| 8.1 |
Notice. Any
notices and demands under or related to this document shall be in
writing
and delivered to the intended party at its address stated herein,
and if
to the Bank, at its main office if no other address of the Bank is
specified herein, by one of the following means: (1) by hand, (2)
by a
nationally recognized overnight courier service, or (3) by certified
mail,
postage prepaid, with return receipt requested. Notice shall be deemed
given: (1) upon receipt if delivered by hand, (2) on the Delivery
Day
after the day of deposit with a nationally recognized courier service,
or
(3) on the third Delivery Day after the notice is deposited in the
mail.
"Delivery
Day"
means a day other than a Saturday, a Sunday or any other day on which
national banking associations are authorized to be closed. Any party
may
change its address for purposes of the receipt of notices and demands
by
giving notice of such change in the manner provided in this
provision.
|
| 8.2 |
No
Waiver.
No
delay on the part of the Bank in the exercise of any right or remedy
waives that right or remedy. No single or partial exercise by the
Bank of
any right or remedy precludes any other future exercise of it or
the
exercise of any other right or remedy. No waiver or indulgence by
the Bank
of any default is effective unless it is in writing and signed by
the
Bank, nor shall a waiver on one occasion bar or waive that right
on any
future occasion.
|
10
| 8.3 |
Integration.
This agreement, the Notes, and any agreement related to the Credit
Facilities embody the entire agreement and understanding of the Borrower
and the Bank and supersede all prior agreements and understandings
relating to their subject matter. If any one or more of the obligations
of
the Borrower under this agreement or the Notes is invalid, illegal
or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining obligations of the Borrower shall
not in
any way be affected or impaired, and the invalidity, illegality or
unenforceability in one jurisdiction shall not affect the validity,
legality or enforceability of the obligations of the Borrower under
this
agreement or the Notes in any other
jurisdiction.
|
| 8.4 |
Relationship
to Prior Agreement.
This agreement constitutes an amendment and a restatement of the
Prior
Agreement in its entirety.
|
| 8.5 |
Joint
and Several Liability.
Each party executing this agreement as the Borrower is individually,
jointly and severally liable under this agreement.
|
| 8.6 |
Choice
of Law.
THIS AGREEMENT SHALL BE DEEMED TO BE EXECUTED AND HAS BEEN DELIVERED
AND
ACCEPTED IN CHICAGO, ILLINOIS BY SIGNING AND DELIVERING IT THERE.
ANY
DISPUTE BETWEEN THE PARTIES HERETO ARISING OUT OF, CONNECTED WITH,
RELATED
TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH THIS AGREEMENT, AND WHETHER ARISING IN CONTRACT,
TORT,
EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL
LAWS AND NOT THE CONFLICTS OF LAW PROVISIONS OF THE STATE OF ILLINOIS.
|
| 8.7 |
Consent
to Jurisdiction.
THE BANK AND THE BORROWER AGREE THAT ALL DISPUTES BETWEEN THEM ARISING
OUT
OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
OF THE
OTHER RELATED DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY
OR
OTHERWISE, SHALL BE RESOLVED ONLY BY STATE OR FEDERAL COURTS LOCATED
IN
▇▇▇▇ COUNTY, ILLINOIS BUT THE BANK AND THE BORROWER ACKNOWLEDGE THAT
ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED
OUTSIDE
OF ▇▇▇▇ COUNTY, ILLINOIS. THE BORROWER WAIVES IN ALL DISPUTES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING
THE
DISPUTE.
|
| 8.8 |
Captions.
Section headings and titles are for convenience of reference only
and do
not affect the interpretation of this
agreement.
|
| 8.9 |
Creditors
Proceedings.
In
any action or proceeding involving any state corporate law, or any
state,
federal or foreign bankruptcy, insolvency, reorganization or other
law
affecting the rights of creditors generally, if the obligations of
the
Borrower under this agreement would otherwise be held or determined
to be
avoidable, invalid or unenforceable on account of the amount of the
Borrower’s liability under this agreement, then, notwithstanding any other
provision of this agreement to the contrary, the amount of such liability
shall, without any further action by the Borrower or the Bank, be
automatically limited and reduced to the highest amount that is valid
and
enforceable as determined in such action or
proceeding.
|
| 8.10 |
Survival
of Representations and Warranties.
The Borrower understands and agrees that in extending the Credit
Facilities, the Bank is relying on all representations, warranties,
and
covenants made by the Borrower and the other Parties in this agreement,
any other Related Documents or in any certificate or other instrument
delivered by the Parties. The Borrower further agrees that regardless
of
any investigation made by the Bank, all such representations, warranties
and covenants will survive the making of the Credit Facilities and
delivery to the Bank of this agreement, shall be continuing in nature,
and
shall remain in full force and effect until such time as the Liabilities
to the Bank shall be paid in full.
|
11
| 8.11 |
Non-Liability
of the Bank.
The relationship of the Borrower and the Bank created by this agreement
is
strictly a debtor and creditor relationship and not fiduciary in
nature,
nor is the relationship to be construed as creating any partnership
or
joint venture between the Bank and the Borrower. The Borrower is
exercising the Borrower’s own judgement with respect to the Borrower's
business. All information supplied to the Bank is for the Bank's
protection only and no other party is entitled to rely on such
information. There is no duty for Bank to review, inspect, supervise
or
inform the Borrower of any matter with respect to the Borrower's
business.
The Bank and the Borrower intend that the Bank may reasonably rely
on all
information supplied by the Borrower or any other Parties to the
Bank,
together with all representations and warranties given by the Borrower
and
the other Parties to the Bank, without investigation or confirmation
by
the Bank and that any investigation or failure to investigate will
not
diminish the Bank's right to so rely.
|
| 8.12 |
Indemnification
of the Bank.
The Borrower
agrees to indemnify, defend and hold the Bank, its parent companies,
subsidiaries, affiliates, their respective successors and assigns
and each
of their respective shareholders, directors, officers, employees
and
agents (collectively, the "Indemnified
Persons")
harmless from any and against any and all loss, liability, obligation,
damage, penalty, judgment, claim, deficiency, expense, interest,
penalties, attorneys' fees (including the fees and expenses of attorneys
engaged by the Indemnified Person at the Indemnified Person's reasonable
discretion) and amounts paid in settlement ("Claims")
to which any Indemnified Person may become subject arising
out of or relating to this agreement or the collateral, except to
the
limited extent that the Claims are proximately caused by the Indemnified
Person’s gross
negligence or willful misconduct.
The indemnification provided for in this paragraph shall survive
the
termination of this agreement and shall not be affected by the presence,
absence or amount of or the payment or nonpayment of any claim under,
any
insurance.
|
| 8.13 |
Counterparts.
This agreement may be executed in multiple counterparts, each of
which,
when so executed, shall be deemed an original, but all such counterparts,
taken together, shall constitute one and the same
agreement.
|
| 8.14 |
Sole
Discretion of the Bank.
Whenever the Bank's consent or approval is required under this agreement,
the decision as to whether or not to consent or approve shall
be
in the sole and exclusive discretion of the Bank and the Bank's decision
shall be final and conclusive.
|
| 8.15 |
Recovery
of Additional Costs. If
the imposition of or any change in any law, rule, regulation, or
guideline, or the interpretation or application of any thereof by
any
court or administrative or governmental authority (including any
request
or policy not having the force of law) shall impose, modify, or make
applicable any taxes (except federal, state, or local income or franchise
taxes imposed on the Bank), reserve requirements, capital adequacy
requirements, or other obligations which would (1) increase the cost
to
the Bank for extending or maintaining the Credit Facilities; (2)
reduce
the amounts payable to the Bank under the Credit Facilities; or (3)
reduce
the rate of return on the Bank's capital as a consequence of the
Bank's
obligations with respect to the Credit Facilities, then the Borrower
agrees to pay the Bank such additional amounts as will compensate
the Bank
therefor, within five (5) days after the Bank's written demand for
such
payment. The Bank's demand shall be accompanied by an explanation
of such
imposition or charge and a calculation in reasonable detail of the
additional amounts payable by the Borrower which explanation and
calculations shall be conclusive in the absence of manifest
error.
|
| 8.16 |
Conflicting
Terms.
If
this agreement is inconsistent with any provision in any Related
Documents, the Bank shall determine, in the Bank's sole and absolute
discretion, which of the provisions shall control any such
inconsistency.
|
| 8.17 |
Expenses.
To
the extent not prohibited by applicable law and whether or not the
transactions contemplated by this agreement are consummated, the
Borrower
is liable to the Bank and agrees to pay on demand all reasonable
costs and
expenses of every kind incurred (or charged by internal allocation)
in
connection with the negotiation, preparation, execution, filing,
recording, modification, supplementing and waiver of the Related
Documents, the making, servicing and collection of the Credit Facilities
and the realization on any collateral, and any other amounts owed
under
the Related Documents, including without limitation reasonable attorneys'
fees (including counsel for the Bank that are employees of the Bank
or its
affiliates) and court costs. These costs and expenses include without
limitation any costs or expenses incurred by the Bank in any proceeding
involving any of the Parties or property of any of the Parties. The
obligations of the Borrower under this section shall survive the
termination of this agreement.
|
12
| 8.18 |
Reinstatement. The
Borrower agrees that to the extent any payment or transfer is received
by
the Bank in connection with the Liabilities, and all or any part
of the
payment or transfer is subsequently invalidated, declared to be fraudulent
or preferential, set aside or required to be repaid or transferred
by the
Bank or paid or transferred over to a trustee, receiver or any other
entity, whether under any proceeding or otherwise (any of those payments
or transfers is hereinafter referred to as a "Preferential
Payment"),
then this agreement and the Credit Facilities shall continue to be
effective or shall be reinstated, as the case may be, even if all
those
Liabilities have been paid in full and whether or not the Bank is
in
possession of the Notes and whether any of the Notes has been marked,
paid, released or cancelled, or returned to the Borrower and, to
the
extent of the payment, repayment or other transfer by the Bank, the
Liabilities or part intended to be satisfied by the Preferential
Payment
shall be revived and continued in full force and effect as if the
Preferential Payment had not been made. The obligations of the Borrower
under this section shall survive the termination of this agreement.
|
| 8.19 |
Severability.
If
any provision of this agreement cannot be enforced, the remaining
portions
of this agreement shall continue in
effect.
|
| 8.20 |
Assignments.
The Borrower agrees that
the Bank may provide any information or knowledge the Bank may have
about
the Borrower or about any matter relating to the Notes or the Related
Documents to JPMorgan Chase & Co., or any of its subsidiaries or
affiliates or their successors, or to any one or more purchasers
or
potential purchasers of the Notes or the Related Documents or any
participation therein. The Borrower agrees that the Bank may at any
time
sell, assign or transfer one or more interests or participations
in all or
any part of its rights and obligations in the Notes to one or more
purchasers whether or not related to the
Bank.
|
| 8.21 |
Waivers.
All Obligors jointly and severally waive notice, demand, presentment
for
payment, notice of nonpayment, notice of acceleration, protest, notice
of
protest, and the filing of suit and diligence in collecting the Notes
and
all other demands and notices, and consents and agrees that the Obligor’s
liabilities and obligations shall not be released or discharged by
any or
all of the following, whether with or without notice to the Obligor
or any
other Obligor, and whether before or after the maturity of the Notes:
(1)
extensions of the time of payment; (2) renewals; (3) acceptances
of
partial payments; and (4) releases or substitutions of any Collateral
or
any Obligor. The
Bank may waive or delay enforcing any of its rights without losing
them.
Each Obligor agrees that acceptance of any partial payment shall
not
constitute a waiver and that waiver of any default shall not constitute
waiver of any prior or subsequent default. Any waiver affects only
the
specific terms and time period stated in the waiver. No modification
or
waiver of this Agreement is effective unless it is in writing and
signed
by the party against whom it is being enforced. Nothing herein is
intended
to waive or vary the duties of the Bank or the rights of the Borrower
in
violation of any provision of the Uniform Commercial Code as adopted
in
the State of Illinois, as amended from time to time, that would prohibit
the waiver or variation of those duties and rights by agreement of
the
parties.
|
| 9 |
USA
PATRIOT ACT NOTIFICATION.
The following notification is provided to the Borrower pursuant to
Section
326 of the USA Patriot Act of 2001, 31 U.S.C. Section
5318:
|
IMPORTANT
INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government
fight the funding of terrorism and money laundering activities, Federal law
requires all financial institutions to obtain, verify, and record information
that identifies each person or entity that opens an account, including any
deposit account, treasury management account, loan, other extension of credit,
or other financial services product. What this means for the Borrower: When
the
Borrower opens
an
account, if the Borrower is an individual Bank will ask for the Borrower’s name,
taxpayer identification number, residential address, date of birth, and other
information that will allow Bank to identify the Borrower, and if the Borrower
is not an individual Bank will ask for the Borrower’s name, taxpayer
identification number, business address, and other information that will allow
Bank to identify the Borrower. Bank may also ask, if the Borrower is an
individual to see the Borrower’s driver’s license or other identifying
documents, and if the Borrower is not an individual to see the Borrower’s legal
organizational documents or other identifying documents.
| 10 |
WAIVER
OF SPECIAL DAMAGES.
THE BORROWER WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW,
ANY
RIGHT THE UNDERSIGNED MAY HAVE TO CLAIM OR RECOVER FROM THE BANK
IN ANY
LEGAL ACTION OR PROCEEDING ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
|
| 11 |
JURY
WAIVER.
THE BORROWER AND THE BANK VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND
UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY DISPUTE (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) BETWEEN
THE
BORROWER AND THE BANK ARISING OUT OF OR IN ANY WAY RELATED TO THIS
AGREEMENT AND THE RELATED DOCUMENTS. THIS PROVISION IS A MATERIAL
INDUCEMENT TO THE BANK TO PROVIDE THE CREDIT FACILITIES.
|
13
| Borrower: | |
| WESBANCO, INC. | |
| By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Title: Executive V/P - Chief Financial Officer | |
| Bank: | |
| JPMORGAN CHASE BANK, N.A. | |
| By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Title: Vice President |
14
ANNEX
I - SUBSIDIARIES
|
Subsidiary
Name
|
State
Where Organized
|
%
Owned/ Owned By
|
|
HOMETOWN
FINANCE COMPANY
|
WV
|
100.00%
by Borrower
|
|
WESBANCO
SECURITIES, INC.
|
OH
|
100.00%
by Borrower
|
|
WESBANCO
BANK, INC.
|
WV
|
100.00%
by Borrower
|
|
WESBANCO
INSURANCE SERVICES, INC.
|
WV
|
100.00%
by Wesbanco Bank, Inc.
|
|
WESBANCO
ASSET MANAGEMENT, INC.
|
DE
|
100.00%
by Wesbanco Bank, Inc.
|
|
WESBANCO
SERVICES, INC.
|
DE
|
100.00%
by Wesbanco Asset Management, Inc.
|
|
WESBANCO
PROPERTIES, INC.
|
WV
|
100.00%
by Borrower
|
EXHIBIT
A
to Credit Agreement between
WesBanco,
Inc. (the
"Borrower")
and
JPMorgan Chase Bank, N.A. (the "Bank")
dated
as
of __________, 2006, as same may be amended, restated and supplemented in
writing.
REPORTING
REQUIREMENTS, FINANCIAL COVENANTS AND
COMPLIANCE
CERTIFICATE FOR CURRENT REPORTING PERIOD ENDING _ ,
200_ ("END
DATE")
|
A.
|
REPORTING
PERIOD.
THIS EXHIBIT WILL BE IN PROPER FORM AND SUBMITTED WITHIN 45 DAYS
OF THE
END OF EACH CALENDAR QUARTER INCLUDING THE LAST REPORTING PERIOD
OF THE
FISCAL YEAR.
|
BORROWER'S
FISCAL YEAR ENDS ON _,
200_.
|
B.
Financial
Reporting.
The Borrower will provide the following financial information in
Proper
Form within the times indicated:
|
Compliance
Certificate
|
|||||
|
WHO
|
WHEN
DUE
|
WHAT
|
(Circle)
|
|||
|
The
Borrower and the Borrower’s Subsidiaries
|
(i)
Within 90 days of fiscal year end
|
Annual
report and financial statements (balance sheet, income statement,
cash
flow statement) audited (with unqualified opinion) by independent
certified public accountants satisfactory to the Bank and prepared
in
accordance with generally accepted accounting principles, consistently
applied on consolidated and consolidating bases, accompanied by this
Compliance Certificate
|
Yes
No
|
|||
|
(ii)
Within 45 days of each Reporting Period End Date, including
the final period of the fiscal year
|
A
copy of all call reports filed with any Governmental Authority for
each of
the Borrower's financial institution Subsidiaries
|
Yes
No
|
||||
|
(iii)
Within 45 days of each Reporting Period End Date, excluding
the final period of the fiscal year
|
A
copy of the Borrower’s quarterly call report as filed with its primary
federal Governmental Authority
|
Yes
No
|
||||
|
C.
Other
Required Covenants to be maintained and/or to be specifically
certified. COMPLIANCE
CERTIFICATE
|
||||||
|
REQUIRED
|
ACTUAL
REPORTED
|
Compliance(Circle)
|
||||
|
(i)
Borrower
shall at all times the categorization of each of its financial institution
Subsidiaries as ‘Well Capitalized’ as defined by the regulations of the
applicable primary federal Governmental Authority. [Section
4.9]
|
Each
financial institutions Subsidiary Well Capitalized?
|
Yes
No
|
||||
|
(ii)
Borrower
shall maintain at all times a “Consolidated
Non-Performing Assets Ratio”
of
not greater than one and 75/100 percent (1.75%). [Section 4.10,
Non-Performing Assets (including OREO) / Total Loans + OREO]
|
Borrower’s
Consolidated Non-Performing Assets Ratio ____%
|
Yes
No
|
||||
THE
ABOVE
SUMMARY REPRESENTS SOME OF THE COVENANTS AND AGREEMENTS CONTAINED IN THE
AGREEMENT AND DOES NOT IN ANY WAY RESTRICT OR MODIFY THE TERMS AND CONDITIONS
OF
THE AGREEMENT. IN CASE OF CONFLICT BETWEEN THIS EXHIBIT A AND THE AGREEMENT,
THE
AGREEMENT SHALL CONTROL.
The
undersigned hereby certifies that the above information and computations are
true and correct and not misleading as of the date hereof, and that since the
date of the Borrower's most recent Compliance Certificate (if any):
|
¨
|
No
default or Event of Default has occurred under the agreement during
the
current Reporting Period, or been discovered from a prior period,
and not
reported.
|
|
¨
|
A
default or Event of Default (as described below) has occurred during
the
current Reporting Period or has been discovered from a prior period
and is
being reported for the first time
and:
|
¨
was
cured on __________________________ .
¨
was
waived by the Bank in writing on ______________________________ .
¨
is
continuing.
Description
of Event of Default:
____________________________________________________________
Executed
this _____ day of _________________, 200 .
|
WESBANCO,
INC.
By:
|
|
|
Name:
|
|
|
Title:
|