Exhibit 10(b)
SECOND AMENDED AND RESTATED
LOAN SUBPARTICIPATION AGREEMENT
This Second
Amended and Restated Loan Subparticipation Agreement (this
“Agreement”) is made and entered into as of
March 30, 2004, between Huntington Preferred Capital
Holdings, Inc. , an Indiana corporation
(“Transferor”) and wholly owned subsidiary of The
Huntington National Bank (“Huntington”), and
Huntington Preferred Capital, Inc. , an Ohio corporation
(“Transferee”).
RECITALS
A. The
parties have previously entered into a certain Amended and Restated
Loan Subparticipation Agreement, dated as of May 12, 2003 (the
“Original Agreement”), whereby Transferor has
transferred and will continue to transfer to Transferee
participation interests in certain loans (the “Loans”)
made by Huntington or an affiliate of Huntington to various
borrowers (collectively, the “Borrowers”), as such
Loans have been and may be identified from time to time by
Huntington, or substituted for other Loans previously transferred
by Huntington to Transferor, in accordance with the Second Amended
and Restated Loan Participation Agreement, dated as of
March 30, 2004, between Huntington and Transferor (the
“Participation Agreement”).
B. Huntington
will service the Loans as set forth in the Participation
Agreement.
C. The
parties desire to amend and restate the Original
Agreement.
AGREEMENT
1. 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 and associated Origination Fees.
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 transfer of a Participation Interest, Transferor
assigns to Transferee, without recourse, all of Transferor’s
beneficial right, title and interest in the Loans and associated
Origination Fees, including any Collateral for the Loans, 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. Transferee shall
pay to Transferor any fees payable to Huntington in connection with
the servicing of the Loans under the Participation
Agreement.
(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,
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
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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,
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