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Exhibit 10(a)
LOAN PARTICIPATION AGREEMENT
This Loan Participation Agreement (this "Agreement") is made and
entered into as of May 1, 1998, between THE HUNTINGTON NATIONAL BANK
("Transferor") and AIRBASE REALTY HOLDING COMPANY, an Indiana corporation
("Transferee").
RECITALS
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").
B. Transferor will service the Loans as hereinafter set forth.
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.
(c) "Participation" and "Participation Interest" shall mean
the interest of Transferee in the Loans created hereby, equal to a ninety-five
percent (95%) interest in each of the Loans.
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(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 1,000 shares of the
common 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 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.
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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. SERVICING OF THE LOANS. Transferor shall service the Loans on
behalf of both Transferee and Transferor as follows:
(a) Except as otherwise specifically set forth in this
Agreement, Transferor will perform the servicing for the Loans or will cause an
affiliate of Transferor to service the Loans. For this purpose, servicing shall
include all communications with any of the Borrowers and third parties, making
of all advances and issuing of letters of credit provided for under the Loan
Documents (subject to receipt from Transferee of its Participation Share of each
such advance), receipt of all collections under the Loans and remittance of the
same to the party entitled thereto, inspections of the Collateral, and all other
acts incidental thereto. Transferor shall use good faith efforts, or shall cause
its affiliate to use good faith efforts, to collect all payments due under the
Loans as they become due and payable and to enforce all obligations of the
Borrowers to the extent necessary to protect the interests of Transferor and
Transferee. Transferor shall administer all Loan collections, including any
escrows, in accordance with all applicable laws and regulations. Transferee
agrees that such funds may be commingled with Transferor's general funds.
(b) Transferor shall have the right in its discretion to
give consents, waivers and modifications of the Loan Documents to the same
extent as if the Loans were wholly-owned by Transferor; provided, however, that
(i) no waiver of any payment default, (ii) no extension of the maturity, (iii)
no reduction of the rate or rates of interest with respect to the Loans, (iv) no
forgiveness or reduction of the principal sum of the Loans, (v) no increase in
the lending formula or advance rates, and (vi) no amendment or modification of
the financial covenants contained in the Loan Documents that would make such
financial covenants less restrictive with respect to any of the Borrowers, shall
be made without the prior written consent of Transferee. Transferor shall have
the right to accept payment or prepayment of the whole principal sum and accrued
interest in accordance with the terms of the Loans, waive prepayment charges in
accordance with Transferor's policy for Loans in which no participation is
granted, and accept additional security for the Loans.
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(c) On or before the date of execution of the Loan
Documents, with respect to the principal sums already advanced and outstanding
pursuant to the Loans as of such date, and on or before any later date when
funds are to be disbursed to any of the Borrowers pursuant to the Loans or a
drawing occurs under any letter of credit, Transferee shall pay to Transferor
its pro rata share, in accordance with its Participation Interest, of the amount
of the disbursement or letter of credit payment (or, with respect to principal
sums already advanced and outstanding as of the date of the execution of the
Loan Documents, the aggregate principal balance of the Loans as of such date),
in funds available for immediate use, by 2:00 p.m., Columbus, Ohio, time, on the
same banking day on which the advance is made (or, with respect to the principal
sums already advanced and outstanding pursuant to the Loan Documents as of the
date of the execution of the Loan Documents, provided, however, that Transferor
shall use its best efforts to give Transferee advance notice of such funding
request no later than 10:00 a.m., Columbus, Ohio, time, on such day. If
Transferee fails or refuses to make payment to Transferor as required herein,
then Transferor, without limitation, shall be entitled to pursue all remedies
and rights permitted by this Agreement, law, or equity against Transferee and
further shall be entitled to, but not be required to, (i) fund Transferee's Pro
Rata Share of the disbursement, and (ii) accrue interest on any unpaid amount at
the Federal Funds Rate, and (iii) withhold from Transferee all interest,
principal, fees and late charges attributable to Transferee's Pro Rata Share
thereof through the date Transferee funds its Pro Rata Share thereof and pays
the interest due thereon, plus any additional cost or expense, including without
limitation, reasonable attorneys' fees, incurred by Transferor as a result of
Transferee's failure to pay, and (iv) offset against Transferee's Pro Rata Share
all sums received by Transferor in connection with the Loans until reimbursed by
Transferee for such payment and interest thereon. All payments received by
Transferor in respect of the Loans shall be distributed pro rata to Transferee
promptly after Transferor shall have collected such payment or payments in
immediately available funds.
(d) Transferor and Transferee shall share ratably in all
payments of principal and interest made on the Loans. Transferor and Transferee
shall share in any prepayment or late charges actually collected in proportion
to their Participation Shares. Transferor shall not be required to remit any
principal, interest, prepayment or late charge unless it is actually collected
from the Borrowers.
(e) To the extent not reimbursed by the Borrowers, and
without limiting the obligation of the Borrowers to do so, Transferee agrees to
reimburse Transferor, to the extent of Transferee's pro rata share, for any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever, including
without limitation disbursements necessary in the judgment of Transferor to
preserve or protect any Collateral (but excluding costs of ordinary overhead and
salaried expense of Transferor's clerical and supervisory personnel), that may
at any time be imposed on, incurred by, or asserted against Transferor in any
way relating to the Loans, the Loan Documents, any letters of credit issued
pursuant to the Loan Documents or the Loan Documents, any collateral, the
transactions contemplated thereby or hereby, or any action taken or omitted by
Transferor under or in connection with any of the foregoing provided, however,
that Transferee shall not be liable for the payment of any portion of the
foregoing which result directly from Transferor's gross negligence or willful
misconduct. The covenants contained in this paragraph shall survive the
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termination of this Agreement and the expiration of any letters of credit issued
pursuant to the Loan Documents.
(f) Transferor shall at all times keep proper books and
records in accordance with generally accepted accounting principles consistently
applied, reflecting all transactions in connection with the Loans. All such
records shall be accessible for inspection by Transferee at all reasonable times
during Transferor's business hours. Transferor shall use its best efforts to
provide the following information to Transferee within a reasonable time after
such information becomes available to Transferor:
(i) The accrual status of the Loans;
(ii) The status of principal and interest payments;
(iii) Financial statements of the Borrowers; and
(iv) Information regarding the value of the
Collateral and the status of Transferor's liens.
(g) Transferor may accept deposits from, make Loans or
otherwise extend credit to any of the Borrowers and generally engage in any kind
of banking relationship with, any of the Borrowers or any other person or entity
having obligations relating to the Loans, the Loan Documents, or any related
agreement and receive payment on such Loans or extensions of credit and
otherwise act with respect thereto freely and without accountability in the same
manner as if this Agreement did not exist. Transferor, without liability, may
rely upon the advice of legal counsel, accountants or other experts (including
those retained by the Borrowers) and upon any written communication or any
telephone conversation which Transferor believes to be genuine and correct or to
have been signed, sent or made by the proper person or entity, shall not be
required to make any inquiry concerning the performance by the Borrowers or any
other person or entity of any of its obligations and liabilities to third
parties or under or in respect of the Loan Documents or the Loans, and shall
have no obligation to make any claim against, or assert any lien upon, any
property held by Transferor or to assert any offset.
8. 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) above.
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9. 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 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.
l0. 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.
l1. 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:
The Huntington National Bank
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
Notices to Transferee shall be addressed to Transferee as follows:
Airbase Realty Holding Company
000 X. Xxxxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
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l2. 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.
l3. 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.
14. 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.
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxx X. Xxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxx
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Title: Senior Vice President
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AIRBASE REALTY HOLDING COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, President
STATE OF OHIO
COUNTY OF FRANKLIN
I, XXXX X. XXXXXXXXXXX, being duly sworn, state that I am the SENIOR
VICE PRESIDENT of The Huntington National Bank, and that the foregoing
statements are true and correct to the best of my knowledge and belief.
/s/ Xxxx X. Xxxxxxxxxxx
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Senior Vice President
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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, 3003
STATE OF INDIANA
COUNTY OF Xxxxxx
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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
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Xxxxxxx X. Xxxxxxxx, President
SWORN TO AND SUBSCRIBED IN MY PRESENCE ON December 28, 2000.
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/s/ Xxxxxx X. Xxxxxx
-----------------------------------
NOTARY PUBLIC
XXXXXX X. XXXXXX
My Commission expires on
9/11/2001
My County of residence
is Xxxxxx
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EXHIBIT A
CERTIFICATE OF PARTICIPATION
THE HUNTINGTON NATIONAL BANK
00 XXXXX XXXX XXXXXX
XXXXXXXX, XXXX 00000
Date: _____________
Airbase Realty Holding Company
000 X. Xxxxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, President
Re: Loan Participation Agreement between us dated as of May 1, 1998
Ladies and Gentlemen:
Pursuant to the terms of the above-referenced Loan Participation
Agreement, this will confirm that, as of this date, we have transferred and
assigned to you an undivided 95% interest in the loan or loans described in the
attached schedule, which are hereafter to be subject to the Loan Participation
Agreement.
This Certificate of Participation is in addition to all previous
Certificates issued pursuant to the Loan Participation Agreement.
Very truly yours,
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Name:
-----------------------------
Title:
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SCHEDULE
Name of Borrower Date of Note Original Principal Amount
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