Loan Participation Agreement (2002)Full Document 

Start of Preview
 
LOAN PARTICIPATION AGREEMENT AND AGREEMENT FOR CONTRIBUTION
 
This LOAN PARTICIPATION AGREEMENT AND AGREEMENT FOR CONTRIBUTION (this “Agreement”), is made and entered into as of November 25, 2002 (the “Effective Date”), by and between Wachovia Bank, National Association, a national banking association (“Bank”), and Wachovia Preferred Funding Holding Corp., a corporation organized under the laws of the State of California (“Participant”).
 
RECITALS
 
WHEREAS, Bank owns and holds certain commercial, commercial real estate loan and mortgage obligations set forth on Schedule A attached hereto (collectively, the “Loans”);
 
WHEREAS, Bank desires to contribute, assign, and transfer to Participant (i) the Participation Interest (as defined below), (ii) the Transferred Amount (as defined below), (iii) 99,851,752 shares of Wachovia Preferred Funding Corp.’s, a corporation organized under the laws of the State of Delaware (“WPFC”), common stock, $0.01 par value per share (the “WPFC Common Stock”) owned by Bank, and (iv) 800 shares of WPFC’s 8.5% Non-cumulative Series D Preferred Stock, $0.01 par value per share (the “Series D Preferred Stock”) owned by Bank (collectively, the “Transferred Interests”) in exchange for 4,368 newly issued shares of Participant’s common stock, no par value (the “Common Stock”); and
 
WHEREAS, Participant desires to accept the contribution, assignment and transfer of the Transferred Interests in exchange for issuing 4,368 shares of Common Stock to Bank.
 
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
 
Section 1.    Definitions.    Unless the context requires otherwise, capitalized terms used and not otherwise defined in this Agreement, including the Recitals hereto, shall have the respective meanings set forth below:
 
 
(i)
 
“ALTA” means the American Land Title Association, or any successor thereto.

1


 
 
(ii)
 
“Borrower or Borrowers” means to the person or persons that are obligated as borrowers under the Loan Documents.
 
 
(iii)  “Collateral”
 
means property of whatever nature or kind pledged to Bank to secure payment of any of the Loans.
 
 
(iv)
 
“Collections” means all moneys, from whatever source derived, received by Bank from time to time on account of, or in respect of, or relating to, any Loan or as proceeds of the Collateral.
 
 
(v)
 
“Loan Documents” means those documents executed by any Borrowers, or any third party obligor in respect of any Loan or Loans or evidencing or relating to any Borrower’s or such third party’s obligations in respect of the Loan or Loans or any security interest or Collateral relating to such Loan or Loans, including without limitation, promissory notes, credit agreements, guarantees, security agreements, mortgages, deeds of trust, or letters of credit.
 
 
(vi)
 
“Participation Interest” means a 100% participation interest in the principal, interest and Unfunded Commitments of the Loans outstanding on the Effective Date and in all related Collateral and Loan Documents.
 
 
(vii)
 
“Participant’s Share” means Participant’s share of any funds received by Bank in respect of any Loan or Loans pro rated according to Participant’s Participation Interest.
 
 
(viii)
 
“Policies and Procedures” means the written policies and procedures of Bank as set forth in portions of Bank’s policies and procedures manuals as of the Effective Date that govern generally, its credit polices, underwriting policies, loan closing policies, collection policies and booking and billing procedures applicable to the Loans, as amended from time to time.
 
 
(ix)
 
“Transferred Amount” means cash equal to the difference between the October 1, 2002 principal balance of the Participation Interest (as shown on Exhibit A), including related accrued interest and deferred fees, and the related corresponding balances as of the Effective Date.
 
 
(x)
 
“Unfunded Commitments” means the obligations of Bank under any of the Loan Documents to fund Loans that are not at such time funded.

2


 
Section 2.    Contribution of Participation Interest and WPFC Stock.
 
(a)    Bank hereby contributes, assigns and transfers to Participant and Participant hereby accepts such contribution, assignment and transfer of, (i) the Participation Interest, (ii) 99,851,752 shares of WPFC Common Stock owned by Bank, and (iii) 800 shares of Series D Preferred Stock owned by Bank according to the terms and conditions set forth herein.
 
(b)    Bank hereby agrees to pay to Participant the Transferred Amount on the Effective Date.
 
Section 3.    Payment.    In consideration for receipt of the Transferred Interests, Participant does hereby issue and convey to Bank 4,368 shares of Common Stock, delivery of which is hereby acknowledged by Bank.

End of Preview