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Exhibit 10(c)
LOAN SUBPARTICIPATION AGREEMENT
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This Loan Participation Agreement (this "Agreement") is made and
entered into as of May 1, 1998, between AIRBASE REALTY HOLDING COMPANY, an
Indiana corporation ("Transferor") and wholly-owned subsidiary of The Huntington
National Bank ("Huntington") and AIRBASE REALTY COMPANY, an Ohio corporation
("Transferee").
RECITALS
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A. Transferor desires to transfer to Transferee and Transferee desires
to obtain from Transferor a participation interest in certain commercial Loans
and mortgage Loans made by Transferor to various borrowers (collectively, the
"Borrowers"), as such Loans may be identified from time to time by Transferor
pursuant to paragraph 2 below (the "Loans").
X. Xxxxxxxxxx and Transferor entered into a Loan Participation
Agreement as of May 1, 1998 (the "Participation Agreement").
X. Xxxxxxxxxx will service the Loans as set forth in the Participation
Agreement.
C. The parties wish to enter into this Agreement setting forth their
respective rights and obligations with respect to the Loans.
AGREEMENT
l. DEFINITIONS.
(a) "Loan Documents" shall mean any and all loan agreements
evidencing or otherwise relating to any of the Loans, together with any and all
commitment letters, promissory notes, real estate mortgages, assignments and
security agreements, financing statements, pledge agreements, letters of credit,
applications and agreements for standby letters of credit, letter of credit
reimbursement agreements, subordination agreements, waivers, affidavits, fire
and extended coverage insurance policies, guarantees, title insurance policies,
applications, reports, surveys, documents required to be maintained by lenders
pursuant to any applicable federal or state regulations, any and all amendments,
modifications or supplements to any of the foregoing from time to time, and all
other relevant documents pertaining to any of the Loans.
(b) "Collateral" shall mean the real property, fixtures,
equipment, inventory, accounts, chattel paper, instruments, documents, general
intangibles, securities and all other property and property rights in which
Transferor has been granted a mortgage, lien or security interest in connection
with any of the Loans.
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(c) "Participation" and "Participation Interest" shall mean
the interest of Transferee in the Loans created hereby, equal to a one hundred
percent (100%) interest in each of the Loans.
(d) "Participation Share," "Pro Rata Share," "pro rata," and
"ratably" shall mean a share in the same proportion as the respective percentage
ownership interests of Transferor and Transferee in the Loans.
2. TRANSFER OF PARTICIPATION INTERESTS. Transferee shall from time to
time buy from Transferor and Transferor shall from time to time sell to
Transferee, without recourse, a continuing undivided fractional Participation
Interest in the Loans by Transferor to the respective Borrowers, in
consideration of Transferee's issuance to Transferor of all 750 shares of the
common stock of Transferee and 896 shares of the preferred stock of Transferee.
Transferor hereby assigns to Transferee, without recourse, all of Transferor's
beneficial right, title and interest in the Loans, including any Collateral for
the Loans, and any payments or collections on account of the Loans. Transferor
shall hold title to the Loans, including any Collateral payments and collections
as agent for Transferee. Each of the Loans which shall be subject to this
Agreement shall be identified on a completed "Certificate of Participation" in
the form of EXHIBIT A attached hereto which shall be delivered by Transferor to
Transferee and shall contain at least the name of each Borrower; the date of the
promissory note evidencing each Loan; and the original principal amount of each
Loan. Each subsequent group of Loans for which a Participation shall be
transferred pursuant to the terms of this Agreement shall be identified in
subsequent Certificates of Participation furnished by the Transferor to the
Transferee.
3. REPRESENTATIONS AND WARRANTIES. Transferor hereby represents and
warrants that Transferor has good title to the Loans and has full right, power
and authority to grant and convey the Participation in the Loans provided for
herein to Transferee, and the Loans are free and clear of all encumbrances or
other interests of any other person.
4. TRANSFEREE'S RISK. Transferee acknowledges and agrees that
Transferor has made no representation or warranty and has no responsibility as
to: (i) the collectibility of the Loans; (ii) the Borrowers' creditworthiness or
financial condition; (iii) the legality, validity, binding effect or
enforceability of the Loan Documents; (iv) the filing, recording or taking of
any other action with respect to the Loan Documents; (v) any other matter having
any relation to the Loans, the Loan Documents, this Agreement, the Borrowers, or
any other person or entity except as otherwise specifically set forth herein.
Transferee acknowledges that Transferor has made available to it copies of the
Loan Documents requested by Transferee. Transferee acknowledges and agrees that
it has made its own independent investigation and determination with respect to
the foregoing matters and accepts full responsibility therefor. The sale of the
Participation Interests by Transferor to Transferee pursuant to this Agreement
shall be and is without recourse of any nature.
5. CUSTODY AND OWNERSHIP OF LOAN DOCUMENTS AND COLLATERAL. Transferor
shall have and maintain physical possession of all the Loan Documents and
Collateral, to the extent that possession is necessary to perfect a security
interest in any Collateral. Transferor shall use reasonable care to safeguard
and protect the Loan Documents and Collateral. Transferor is authorized to deal
with the Loans in Transferor's own name, subject to the terms and conditions
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of this Agreement, and, as far as third parties are concerned, to act on behalf
of Transferee as though Transferor were the sole owner of the Loans; provided,
however, that all of Transferor's actions with respect to the Loans will be
subject to this Agreement.
6. NATURE OF TRANSFEREE'S PARTICIPATION INTEREST. Transferee's
obligations hereunder constitute absolute, unconditional and continuing
obligations to make funds or credit available to Transferor for Transferor to
extend credit to any of the Borrowers and pay letters of credit issued for the
account of any of the Borrowers pursuant to the terms of the Loan Documents and
will be unaffected by (i) any amendment or waiver of any term of the Loan
Documents, (ii) any extension, overadvance, indulgence, settlement or compromise
granted or agreed to in relation to the Loan Documents, (iii) the release of any
Collateral or any guaranty of the Loans, (iv) any invalidity, unenforceability,
or insufficiency of the Loan Documents or of any drafts or other documents
submitted in connection with draws under any letters of credit, (v) any default
by or insolvency of any of the Borrowers, (vi) any act or omission on
Transferor's part relating to this Agreement or the Loan Documents (absent gross
negligence or willful misconduct), (vii) the absence of notice to Transferee of
any of the foregoing, (viii) any requirement that Transferor take any action
against any of the Borrowers or any other person liable on the Loans, and (ix)
any defenses in law or equity which Transferee may have to the full discharge of
its obligation under this Agreement (absent gross negligence or willful
misconduct by Transferor).
7. DELINQUENCY AND FORECLOSURE. In the event of any default of any of
the Borrowers, which default shall be continuing for more than 30 days,
Transferor shall use its best efforts to give Transferee written notice of such
default. Transferor shall thereafter take such action as Transferor shall deem
necessary to protect the interests of both Transferor and Transferee, including,
but not limited to, commencement of foreclosure actions or the acceptance of
deeds in lieu of foreclosure. Nothing contained herein shall be construed as
limiting Transferor from dealing with any of the Borrowers as it would in the
case of a Borrower where the Loan is wholly-owned by Transferor, for the purpose
of entering into forebearance agreements, moratoriums and general work-out plans
designed to allow the Borrowers to cure the default and restore the Loan to good
standing; provided, however, that no such agreement made by Transferor be in
violation of paragraph 7(b) of the Participation Agreement.
8. PARTICIPATION NOT A SECURITY. Transferee represents and warrants to
Transferor that (a) Transferee does not consider the acquisition of its
Participation Interest hereunder to constitute the "purchase" or "sale" of a
"security" within the meaning of the Securities Act of l933, the Securities
Exchange Act of l934 or Rule l0b-5 promulgated thereunder, the Trust Indenture
Act of l939, the securities laws of the State of Ohio, any other applicable
securities statute or law, or any rule or regulations under any of the
foregoing, (b) Transferee has no expectation that it will derive profits from
the efforts of Transferor or any third party in respect of the acquisition of
Transferee's Participation Interests hereunder, (c) such Participation Interests
constitute a commercial transaction by Transferee with Transferor regarding
Transferee's Participation Interests in the obligations of the Borrowers under
the Loans and do not represent an "investment" (as that term is commonly
understood) in Transferor or the Borrowers, (d) Transferee is purchasing its
Participation Interests hereunder for its own account in respect of a commercial
transaction made in the ordinary course of its commercial banking business and
not with a view to or in connection with any subdivision, resale, or
distribution
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thereof, and (e) Transferee is engaged in the business of entering into
commercial transactions (including transactions of the nature contemplated
herein and in the Loans), can bear the economic risk related to the purchase of
the same, and has had access to all information deemed necessary by it in making
its decision whether or not to purchase the same.
9. SUCCESSORS AND ASSIGNS. Transferor shall not assign this Agreement
in whole, but may assign to one or more participants all or part of Transferor's
ownership interest in the Loans. Transferee shall have no right to assign or
further participate any of its Participation Interest in the Loans without the
prior written consent of Transferor. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the respective
successors and assigns of the parties hereto.
10. NOTICES. All notices hereunder shall be in writing and shall be
personally delivered to the address or addresses of the party receiving the
notice or mailed to such party at such address or addresses by certified or
registered mail, return receipt requested, postage prepaid. Either party may
change its address or addresses for notices and designate or change the location
in which payments to such party will be made by a notice to the other party.
Notices which are mailed shall be deemed received by the addressee on the third
working day following the date of such mailing. Notices to Transferor shall be
addressed as follows:
Airbase Realty Holding Company
000 X. Xxxxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Notices to Transferee shall be addressed to Transferee as follows:
Airbase Realty Company
c/o The Huntington National Bank
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
11. RELATIONSHIP OF PARTIES. With respect to the purchase and sale of
Participation Interests in the Loans, Transferor and Transferee shall occupy the
relationship of buyer and seller of a property interest. There is not intended
hereby and shall not be construed to exist any fiduciary relationship between
Transferee and Transferor, or any partnership or joint venture between
Transferee and Transferor. With respect to servicing, Transferor shall be an
independent contractor of Transferee. In no event shall either party be
considered an agent or employee of the other party.
12. INTERPRETATION. This Agreement and the rights and obligations of
the respective parties hereunder shall be governed by and interpreted in
accordance with the laws of the State of Indiana.
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13. AMENDMENTS. This Agreement may not be amended, altered or modified
except by a written instrument signed by both the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
AIRBASE REALTY HOLDING COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx, President
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Xxxxxxx X. Xxxxxxxx, President
AIRBASE REALTY COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Vice President
STATE OF INDIANA
COUNTY OF XXXXXX
I, Xxxxxxx X. Xxxxxxxx, being duly sworn, state that I am the President
of Airbase Realty Holding Company, and that the foregoing statements are true
and correct to the best of my knowledge and belief.
/s/ Xxxxxxx X. Xxxxxxxx, President
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Xxxxxxx X. Xxxxxxxx, President
SWORN TO AND SUBSCRIBED IN MY PRESENCE ON DECEMBER 28, 2000
/s/ Xxxxxx X. Xxxxxx
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NOTARY PUBLIC
XXXXXX X. XXXXXX
My Commission expires 9/11/2001
My County of Residence is Xxxxxx
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STATE OF OHIO
COUNTY OF FRANKLIN
I, Xxxxxx X. Xxxxxxx, being duly sworn, state that I am the Vice
President of Airbase Realty Company, and that the foregoing statements are true
and correct to the best of my knowledge and belief.
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Vice President
SWORN TO AND SUBSCRIBED IN MY PRESENCE ON DECEMBER 26, 2000
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/s/ Xxxxxxxx X. Xxxxx
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NOTARY PUBLIC
Notarial Seal State of Ohio
Xxxxxxxx X. Xxxxx
Notary Public, State of Ohio
My Commission Expires June 25, 2003
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EXHIBIT A
CERTIFICATE OF PARTICIPATION
AIRBASE REALTY HOLDING COMPANY
000 X. XXXXXXXX, XXXXX 0000
XXXXXXXXXXXX, XXXXXXX 00000
Date: _____________
Airbase Realty Company
c/o The Huntington National Bank
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: R. Xxxxx Xxxxxx, President
Re: Loan Subparticipation Agreement between us dated as of May 1, 1998
Ladies and Gentlemen:
Pursuant to the terms of the above-referenced Loan Subparticipation
Agreement, this will confirm that, as of this date, we have transferred and
assigned to you an undivided 100% interest in the loan or loans described in the
schedule attached to the Certificate of Participation relating to the Loan
Participation Agreement, as of May 1, 1998, between The Huntington National Bank
and Airbase Realty Holding Company, which are hereafter to be subject to the
Loan Subparticipation Agreement.
This Certificate of Participation is in addition to all previous
Certificates issued pursuant to the Loan Subparticipation Agreement.
Very truly yours,
_______________________________
Name:__________________________
Title:_________________________
