Exhibit 10(C)



 






Exhibit 10.(c).




SECOND AMENDED AND RESTATED 

LOAN PARTICIPATION AGREEMENT




     This Second Amended and Restated Loan Participation Agreement (this “Agreement”) is made and
entered into as of May 12, 2005, between The Huntington National Bank (“Transferor”) and Huntington
Preferred Capital, Inc., an Ohio corporation (“Transferee”).



Recitals




     A. The parties have previously entered into a certain Amended and Restated Loan Participation
Agreement, dated as of March 30, 2004 (the “2004 Agreement”), whereby Transferor has transferred
and will continue to transfer to Transferee participation interests in certain loans (the “Loans”)
made by Transferor or an affiliate of Transferor to various borrowers (collectively, the
“Borrowers”), as such Loans have been and may be identified from time to time by Transferor
pursuant to Section 2 below, or substituted for other Loans previously transferred by Transferor to
Transferee, pursuant to such Section 2.



     B. The parties desire to amend and restate the 2004 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 in the associated Origination Fees, equal to up to a one hundred percent (100%) interest
in each of 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 Loan Origination Fees.



     2. Transfer of Participation Interests; Substitution of 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 Transferee’s Participation Share of Transferor’s carrying value for
the Loan, which is the outstanding principal balance of the Loan and interest earned
thereon but not collected, net of unearned income, if any, less an allowance for loan losses.
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 will assign to
Transferee, without recourse, Transferee’s Participation Share 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.



          (c) Upon the mutual agreement of the parties, Transferor may from time to time substitute a
Participation Interest in a Loan or group of Loans and the associated Origination Fees (the “New
Loans”) having a fair market value (as determined by the mutual agreement of the parties)
equivalent to the Participation Interest in a Loan or group of Loans and associated Origination
Fees previously transferred to Transferee hereunder (the “Old Loans”), whereupon the Participation
Interest previously granted by Transferor to Transferee in the Old Loans will be canceled and
Transferee shall have a Participation Interest in the New Loans. Such a substitution may be made as
part of a purchase or other transfer of additional Participation Interests in accordance with
paragraph (a) above. Any amounts payable by Transferor to Transferee hereunder on account of the
Old Loans, prorated through the date of the substitution, shall be paid by Transferor to Transferee
at the time of such substitution.



          (d) 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 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, at the time of transfer of the Participation Interests to
Transferee, 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 in a manner
substantially the same as for similar work performed by Transferor on its own behalf. 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 the exercise of its reasonable discretion and in
accordance with prudent banking practices, 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 Transferor shall not grant or agree to any (i) waiver of any payment default, (ii) extension
of the maturity, (iii) reduction of the rate or rates of interest with respect to the Loans, (iv)
forgiveness or reduction of the principal sum of the Loans, (v) increase in the lending formula or
advance rates, and (vi) waiver of any right to elect to foreclose on any Loan in default, and (vii)
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 without the
prior written consent of Transferee, except that Transferor shall be permitted to grant or agree to
any of such consents, waivers or modifications pursuant to and in accordance with guidelines and
limitations provided by Transferee to Transferor in writing from time to time. 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.



          (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,



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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 in proportion to their Participation Shares in all
payments of principal and interest made on the Loans after the date of transfer of the
Participation Interests. Transferor and Transferee shall share in any prepayment, late charges, or
any other fees or charges associated with the Loans which are actually collected subsequent to the
time of transfer of the associated Participation Interest, in proportion to their Participation
Shares, unless otherwise provided in the servicing fee arrangement referenced in paragraph 7(h).
Transferor shall not be required to remit any such principal, interest, prepayment, late charge, or
any other fee or charge associated with the Loans, 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 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



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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.



          (h) In consideration of the performance of the loan servicing obligations provided under this
paragraph 7, Transferee shall pay to Transferor a loan servicing fee. The amount and terms of such
fee shall be determined by the mutual agreement of the parties from time to time during the term of
this Agreement and shall be subject to review and adjustment at any time during the term of this
Agreement. Transferor shall provide to Transferee, on or before the date that is ten days after
the end of each month during the term of this Agreement, a written statement specifying the amount
of the servicing fee payable for the preceding month and the basis for the calculation of such fee.
Transferor shall be entitled to deduct the amount of such fees from any and all amounts otherwise
due and payable by Transferor to Transferee from time to time under the terms of this Agreement.



     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 notice of such default. Transferor may take such action as it deems advisable,
including exercising Transferee’s right to commence foreclosure actions or accept deeds in lieu of
foreclosure, pursuant to and in accordance with guidelines and limitations provided by Transferee
to Transferor in writing from time to time. Notwithstanding the above, Transferor shall at all
times take such action as Transferee may recommend in writing to Transferor as necessary to protect
the interests of both Transferor and Transferee, including, but not limited to, commencement of
foreclosure actions or acceptance of deeds in lieu of foreclosure.



     9. 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
1933, the Securities Exchange Act of 1934 or Rule 10b-5 promulgated thereunder, the Trust Indenture
Act of 1939, 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 the 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.



     10. 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
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.



     11. 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

41 South High Street

Columbus, Ohio 43287

Attention: General Counsel



Notices to Transferee shall be addressed to Transferee as follows:



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Huntington Preferred Capital, Inc.

41 South High Street

Columbus, Ohio 43287

Attention: President



     12. 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. The parties acknowledge that Transferee has established written policies relating to
the relationship between Transferor and Transferee. Transferor agrees to adhere to such written
policies as they exist on the date of this Agreement and as they may be modified or supplemented in
the future; provided, however, that any future modifications to such policies and any new policies
related to the relationship between Transferor and Transferee must be approved in advance by
Transferor, which approval will not be unreasonably withheld.



     13. 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
Ohio.



     14. Amendments. This Agreement may not be amended, altered or modified except by a
written instrument signed by both the parties.



[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.


	 	 	 	 	 
	 	THE HUNTINGTON NATIONAL BANK

 	 
	 	By:  	/s/ Donald R. Kimble
 	 
	 	Donald R. Kimble, Executive Vice President 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	HUNTINGTON PREFERRED CAPITAL, INC.

 	 
	 	By:  	/s/ Edward J. Kane
 	 
	 	 	Edward J. Kane, Vice President 	 
	 	 	 	 




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Exhibit A




Certificate of Participation




The Huntington National Bank

41 South High Street

Columbus, Ohio 43287



Date:                     




Huntington Preferred Capital, Inc.

41 South High Street

Columbus, Ohio 43287

Attention: Edward J. Kane, Vice President




     Re: Second Amended and Restated Loan Participation Agreement between us dated as of
May 12, 2005



Ladies and Gentlemen:




     Pursuant to the terms of the above-referenced Second Amended and Restated Loan Participation
Agreement, this will confirm that, as of this date, we have transferred and assigned to you a
certain undivided interest in the loan or loans described in the attached schedule, which are
hereafter to be subject to the Second Amended and Restated Loan Participation Agreement.



     This Certificate of Participation is in addition to all previous Certificates issued pursuant
to the Second Amended and Restated Loan Participation Agreement.



	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 
	 	 	 
	

	 	Name:	 	 
	

	 	 	 	 
	

	 	Title:	 	 
	

	 	 	 	 






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Schedule




	 	 	 	 	 	 	 	 	 
	Borrower	 	Date of Note	 	Principal Amount	 	Amount of Origination Fees	 	Purchase Price
	 
	 	 	 	 	 	 	 	 






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