EXHIBIT 10(c)
LOAN SUBPARTICIPATION AGREEMENT
This Loan Subparticipation Agreement (this "Agreement") is made and
entered into as of May 12, 2003, between HUNTINGTON PREFERRED CAPITAL HOLDINGS,
INC., an Indiana corporation ("Transferor") and subsidiary of The Huntington
National Bank ("Huntington") and HPC HOLDINGS-III, INC., a Nevada corporation
("Transferee").
RECITALS
A. Transferor desires to transfer to Transferee and Transferee
desires to obtain from Transferor a participation interest in certain loans made
by The Huntington National Bank, a national banking association ("Huntington"),
or an affiliate of Huntington, 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 are parties to a certain Amended and
Restated Loan Participation Agreement, dated as of May 12, 2003 (the
"Participation Agreement").
C. Transferor and Huntington Preferred Capital, Inc., an Ohio
corporation ("HPC") are parties to a certain Amended and Restated Loan
Subparticipation Agreement, dated as of May 12, 2003.
X. Xxxxxxxxxx and Transferor are parties to a certain Loan
Participation Agreement, dated as of July 1, 2002.
E. Transferor and Huntington Preferred Capital II, Inc., an Ohio
corporation ("HPC2") are parties to a Loan Subparticipation Agreement, dated as
of July 1, 2002.
F. Transferor and Transferee are parties to a Contribution
Agreement, dated as of December 27, 2002, by which Transferor has transferred
its share ownership in both HPC and HPC2 to Transferee, thereby making HPC and
HPC2 subsidiaries of Transferee.
X. Xxxxxxxxxx will service the Loans as set forth in the
Participation Agreement.
H. 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) "Origination Fees" shall mean the origination,
commitment, or other fees collected at the time of origination of a particular
Loan.
(d) "Participation" and "Participation Interest" shall
mean the interest of Transferee in the Loans and associated Origination Fees,
equal to a one hundred percent (100%) participation interest in Transferor's
participation interest in the Loans and associated Origination Fees.
(e) "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.
(a) Transferee shall from time to time buy from
Transferor or from an affiliate of Transferor, without recourse, a continuing
undivided fractional Participation Interest, and Transferor shall from time to
time sell to Transferee, or cause an affiliate or affiliates of Transferor to
sell to Transferee, such Participation Interests. The purchase price for a
particular Participation Interest transferred shall be 100% of the purchase
price paid by Transferor to Huntington for its Participation Interest. Transfers
of Participation Interests by Transferor or an affiliate of Transferor to
Transferee hereunder may, upon the mutual agreement of the parties at the time
any such transfers are made, be made (i) as additional contributions to the
capital of Transferee, (ii) in exchange for the payment of cash by Transferee to
Transferor or appropriate affiliate of Transferor, (iii) in consideration of the
issuance to Transferor or appropriate affiliate of Transferor of shares of the
capital stock of Transferee, or (iv) for such other consideration as the parties
shall mutually agree.
(b) At the time of any transfer of a Participation
Interest, Transferor assigns to Transferee, without recourse, all of
Transferor's beneficial right, title and interest in the Loans, including any
Collateral for the Loans and associated Origination Fees, and any uncollected
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.
(c) Each of the Loans which shall be subject to this
Agreement shall be (i) identified on a completed "Certificate of Participation"
in the form of Exhibit A attached hereto,
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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,
the original principal amount of each Loan, the amount of any associated
Origination Fees, and the purchase price associated with the same; or (ii)
otherwise identified electronically or in the loan files for the Loans, in a
manner that is mutually agreeable to Transferor and Transferee and sufficient to
properly identify the Loans.
3. Representations and Warranties. At the time of transfer of
Participation Interests to Transferee, Transferor represents and warrants that
Transferor has full right, power, and authority to grant and convey the
Participation Interests to Transferee, and, at the time of transfer of
Participation Interests to Transferee, the Participation Interests 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.
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
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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 Transferee may 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. In the event Transferor shall fail to timely take
any such action as directed by Transferee, Transferee may directly take any and
all action it deems necessary to protect its interests as Transferee, including
but limited to, the enforcement of collections, the commencement of foreclosure
actions, or the acceptance of deeds in lieu of foreclosure. At the direction of
the Transferee, the Transferor may deal with any of the Borrowers 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, Transferee may, in its discretion, deal
directly with any of the Borrowers in the event the Transferee determines that
Transferor is not satisfactorily following the directions of the Transferee as
if Transferee were the direct holder of the Loans and, notwithstanding anything
in this Agreement to the contrary, the Transferor shall, at all times, only take
action or inaction that is consistent with the economic interests of the
Transferee or otherwise only with the consent of the Transferee.
8. Participation Not a Security. Transferee represents and
warrants to Transferor that (i) 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, (ii) 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 associated Origination Fees
and do not represent an "investment" (as that term is commonly understood) in
Transferor or the Borrowers, (iii) 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 (iv) 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 to anyone other
than a subsidiary or other affiliate of Transferor or Transferee without the
prior
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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:
Huntington Preferred Capital Holdings, Inc.
000 X. Xxxxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: President
Notices to Transferee shall be addressed to Transferee as follows:
HPC Holdings-III, Inc.
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: President
11. Relationship of Parties. With respect to the purchase and sale
of Participation Interests, 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.
13. Amendments. This Agreement may not be amended, altered or
modified except by a written instrument signed by both the parties.
14. Amendments to Participation Agreement. The Participation
Agreement may not be amended, altered, or modified without the written consent
of Transferee.
[signatures appear on the following page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
HUNTINGTON PREFERRED CAPITAL
HOLDINGS, INC.
By: ______________________________________________
Xxxxxx X. Xxxxxxx, President
HPC HOLDINGS-III, INC.
By: ______________________________________________
Xxxxxxxxxxx X. Xxxxxxx, Vice President
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EXHIBIT A
CERTIFICATE OF PARTICIPATION
HUNTINGTON PREFERRED CAPITAL HOLDINGS, INC.
000 X. XXXXXXXX, XXXXX 0000
XXXXXXXXXXXX, XXXXXXX 00000
Date: _____________
HPC Holdings-III, Inc.
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Vice President
Re: Loan Subparticipation Agreement between us dated as of May 12, 2003
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 our participation interest in the
loan or loans described in the schedule attached to the Certificate of
Participation relating to the Amended and Restated Loan Participation Agreement,
dated as of May 12, 2003, between The Huntington National Bank and Huntington
Preferred Capital Holdings, Inc., or the Loan Participation Agreement, dated as
of July 1, 2002, between The Huntington National Bank and Huntington Preferred
Capital Holdings, Inc., 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: ______________________________________
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