Exhibit 2.2
LOAN PURCHASE AGREEMENT
between
THE FIRST NATIONAL BANK OF IPSWICH
and
ATLANTIC BANK OF NEW YORK
TABLE OF CONTENTS
Page
SECTION I Definitions.................................................1
SECTION II Agreement to Purchase.......................................5
SECTION III Purchase of Loans...........................................5
SECTION IV Rights to Payments on the Loans.............................5
SECTION V Closing.....................................................6
SECTION VI Representations, Warranties and Covenants of Seller.........6
SECTION VII Repurchase.................................................13
SECTION VIII Representations, Warranties and Covenants of Purchaser.....14
SECTION IX Closing Documents..........................................15
SECTION X Costs......................................................16
SECTION XI Post-Closing Matters.......................................16
SECTION XII Indemnification............................................16
SECTION XIII Confidentiality............................................17
SECTION XIV Termination................................................17
SECTION XV Notices....................................................17
SECTION XVI Survival of Agreement......................................19
SECTION XVII Severability...............................................19
SECTION XVIII Counterparts...............................................19
SECTION XIX Governing Law..............................................19
SECTION XX Successors and Assigns.....................................20
SECTION XXI Further Agreements.........................................20
SECTION XXII Public Announcements.......................................20
SECTION XXIII Amendments.................................................20
SECTION XXIV Interpretation.............................................20
SECTION XXV Intention of the Parties...................................21
SECTION XXVI Modification...............................................21
SECTION XXVII Waivers....................................................21
SECTION XXVIII Schedules and Headings.....................................21
SCHEDULES
SCHEDULE I Schedule of Loans To Be Purchased at Par (including
Exceptions from loan policy and location of collateral)
SCHEDULE II Schedule of Loans To Be Purchased Below Par (including
Exceptions from loan policy and location of collateral)
SCHEDULE III Delinquent Charges on Collateral
SCHEDULE IV Hazardous Substances
SCHEDULE V Revolving Loans and approved but not yet funded construction
and other Loans
SCHEDULE VI Governmental Notifications
SCHEDULE VII Litigation
SCHEDULE VIII Material Information
SCHEDULE IX Letters of credit
This Loan Purchase Agreement (this "Agreement") is entered into as of
February 22, 2005 by and between THE FIRST NATIONAL BANK OF IPSWICH, a national
bank ("Purchaser") and ATLANTIC BANK OF NEW YORK, a New York commercial bank
("Seller").
RECITALS
WHEREAS, Seller and Purchaser have entered into a Purchase and Assumption
Agreement, dated February 22, 2005 (the "P&A Agreement"), pursuant to which
Purchaser will purchase the Assets (as defined in the P&A Agreement) and assume
the Liabilities (as defined in the P&A Agreement); and
WHEREAS, Seller desires to sell, and Purchaser desires to purchase as part
of the Assets, certain of the loans of Seller on the terms and conditions
described below.
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Purchaser and Seller agree as
follows:
I. DEFINITIONS.
As used in this Agreement, the capitalized terms set forth below shall
have the respective meanings set forth below; terms importing the singular shall
include the plural and vice versa:
"Assignment" means an individual assignment of a Mortgage or Security
Agreement, notice of transfer or equivalent instrument in recordable form,
sufficient under the laws of the jurisdiction wherein the related Real Property
Interest is located to reflect of record the sale or transfer of the related
Loan.
"Business Day" means any day other than a Saturday, Sunday or any other
day on which banking institutions in Massachusetts are permitted or required by
any applicable law or executive order to close.
"Collateral" means (i) every item of collateral in which a security
interest, pledge, mortgage, or assignment is granted by an Obligor in connection
with a Loan, including, without limitation, the Equipment, Real Property
Interests and Improvements pledged by such Obligor as collateral under the
related Loan Documents and (ii) any property interest in which a security
interest or other interest has been granted under applicable federal or state
law in effect from time to time, including, without limitation, under the UCC
with respect to the Loans. The foregoing shall include, without limitation,
Seller's rights (a) under investment or share owner certificates or other
evidence of the right to receive payment, (b) as lien holder of any item of
personal property the ownership of which is evidenced by a certificate of title
and (c) all proceeds of the foregoing (including all insurance proceeds).
"Due Date" means, with respect to any Loan, the day of the month set forth
in the related Note on which each monthly payment on such Loan is scheduled to
be due, without regard to grace periods.
"Encumbrance" means any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any lease
or title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of, or agreement to
give, any financing statement perfecting a security interest under the UCC or
comparable law of any jurisdiction).
"Environmental Laws" means all federal, state, and local laws, statutes,
ordinances and regulations, now or hereafter in effect, and in each case as
amended or supplemented from time to time, and any judicial or administrative
interpretation thereof, including, without limitation, any applicable judicial
or administrative order, consent decree or judgment, relative to any Real
Property Interest, relating to the regulation and protection of the environment
and natural resources (including, without limitation, ambient air, surface
water, groundwater, wetlands, land surface or subsurface strata, wildlife,
aquatic species and vegetation). Environmental Laws include but are not limited
to the Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. 9601 et seq., the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. 6901 et seq., the Toxic Substances Control Act, as amended,
15 U.S.C. 2601 et seq., the Hazardous Materials Transportation Act, as amended,
49 U.S.C. 1801 et seq., the Federal Insecticide, Fungicide, and Rodenticide Act,
as amended (7 U.S.C. 136 et seq.), the Clean Air Act, as amended (42 U.S.C. 740
et seq.), the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 et
seq.), the Occupational Safety and Health Act, as amended (29 U.S.C. 651 et
seq.), the Safe Drinking Water Act, as amended (42 U.S.C. 300(f) et seq.), the
Clean Water Act (33 U.S.C. 1251 et seq.), the National Environmental Policy Act
of 1969 (42 U.S.C. 4321), Title III of the Superfund Amendment and Authorization
Act (40 U.S.C. 1101 et seq.), Massachusetts Oil and Hazardous Material Release
Prevention and Response Act (M.G.L. c. 21E), and the Massachusetts Hazardous
Waste Management Act (M.G.L. c. 21C), and any and all regulations promulgated
thereunder, and all analogous state and local counterparts or equivalents and
any transfer of ownership or notification or approval statutes.
"Equipment" means, with respect to any Loan, any and all personal property
which would constitute "equipment" under the UCC securing such Loan, together
with all accessories, attachments, accessions, parts, repairs, substitutions,
replacements and upgrades now or hereafter affixed to or used in connection
therewith and included in the Collateral for such Loan.
"Governmental Entity" means a federal, state, provincial, local, county or
municipal government, governmental, regulatory or administrative agency,
department, commission board, bureau or other authority or instrumentality,
domestic or foreign.
"Guarantee" means a guarantee executed by any Person, guaranteeing payment
and/or performance of all or a part of a borrower's obligations under a Loan.
"Hazardous Substances" means, without limitation: (a) those substances
included within the definitions of any one or more of the terms "hazardous
substances", "hazardous materials", "toxic substances", and "hazardous waste" in
the Comprehensive Environmental Response, Compensation and Liability Act, as
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amended, 42 U.S.C. 9601 et seq., the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. 6901 et seq., the Toxic Substances Control Act, as amended,
15 U.S.C. 2601 et seq., and the Hazardous Materials Transportation Act, as
amended, 49 U.S.C. 1801 et seq., and in the regulations promulgated pursuant to
said laws; (b) those substances listed in the U.S. Department of Transportation
Table (49 CFR 172.101 and amendments thereto) or by the Environmental Protection
Agency (or any successor agency) as hazardous substances (40 CFR 302 and
amendments thereto); (c) such other substances, materials and wastes as are or
become regulated under applicable local, state or federal laws, or as are
classified as hazardous or toxic under federal, state or local laws or
regulations; and (d) any materials, wastes or substances that are (i) petroleum,
(ii) asbestos, (iii) polychlorinated biphenyls, (iv) within the definition of
"hazardous substance" set forth in Section 311 of the Clean Water Act, 13 U.S.C.
1321 et seq. (33 U.S.C. 1321) or designated as "toxic pollutants" subject to
Chapter 26 of the Clean Water Act pursuant to Section 307 of the Clean Water Act
(33 U.S.C. 1317); (v) flammable explosives; or (vi) radioactive materials.
"Improvements" means all buildings, structures, improvements, parking
areas, landscaping, Equipment, fixtures and articles of property now or
hereafter erected on, attached to, or used or adapted for use in the operation
of any Real Property Interests, including, without limitation, all heating, air
conditioning and incinerating apparatus and equipment, all boilers, engines,
motors, dynamos, generating equipment, piping and plumbing fixtures, water
heaters, ranges, cooking apparatus and mechanical kitchen equipment,
refrigerators, freezers, cooling, ventilating, sprinkling and vacuum cleaning
systems, fire extinguishing apparatus, gas and electric fixtures, carpeting,
floor covering, underpadding, elevators, escalators, partitions, mantels,
built-in mirrors, window shades, blinds, draperies, screens, storm sashes,
awnings, signs, furnishings of public spaces, halls and lobbies, and shrubbery
and plants.
"Interest Accrual Period" means, with respect to each Due Date related to
any Loan, the period commencing on the immediately preceding Due Date and ending
on the day immediately preceding such Due Date.
"Interest Rate" means, with respect to any Loan, the annualized rate at
which interest is scheduled (in the absence of a default) to accrue on such Loan
from time to time during any Interest Accrual Period in accordance with the
related Note and applicable law.
"Loans" means the loans or extensions of credit identified on the Loan
Schedules.
"Loan Amount" means the sum of (i) the aggregate amount of the purchase
price for all loans stated on Schedule II and (ii) the aggregate amount of the
unpaid principal balance and accrued and unpaid interest stated on Schedule I
for all other Loans.
"Loan Documents" means, with respect to each Loan, (i) any and all
agreements between Seller (or any of its predecessors in interest) and any
third-party with respect to the Loan or the Collateral described in the Loan and
(ii) any and all documents connected with the Loan executed by any Obligor with
respect to such loan, including, without limitation, originally executed copies
of any and all notes, pledge and security agreements, schedules, Mortgages,
assignments of rents, subordination agreements, amendments (including any
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documents amending, modifying or otherwise altering any Loan Document), addenda,
riders, UCC financing statements, consents by landlords or other persons,
indemnity agreements, environmental reports and assessments with respect to any
Real Property Interests, any appraisals and surveys with respect to any Real
Property Interests, any Guarantees, any opinions of counsel, all insurance
certificates and policies, including, but not limited to, real estate and
leasehold title insurance policies, and any documents evidencing any credit
enhancements.
"Loan Files" means the Loan Documents and all other information in the
possession of Seller pertaining to the Loans.
"Lost Note Affidavit and Indemnity" means an affidavit and indemnity
executed by an authorized officer of the Seller, together with a copy of the
related Note.
"Mortgage" means a mortgage, deed of trust, leasehold mortgage or
leasehold deed of trust given by an Obligor to secure the repayment to Seller of
a Loan and the performance of any other obligations required under the related
Loan Documents.
"Note" means the original executed promissory note evidencing the
indebtedness of the Obligor under a Loan, together with any rider, addendum or
amendment thereto, or any renewal, substitution or replacement of such
promissory note.
"Obligor" means, with respect to any Loan or credit enhancement, any
Person that is an obligor, borrower or guarantor under such Loan or credit
enhancement or has granted a mortgage or security interest in Collateral to
secure such Loan or credit enhancement, and shall include the successors and
assigns of such Persons.
"Payments" means, with respect to each Loan, all monies due or to become
due under such Loan, including, without limitation, all payments of principal
and interest, late fees, prepayment fees, collections, recoveries or proceeds
(including proceeds from insurance policies, condemnation or liquidation) on or
in respect of such Loan.
"Permitted Encumbrance" means (1) the lien of current real property taxes,
water charges, sewer rents and assessments not yet due and payable or payable
but not yet delinquent, (2) covenants, conditions and restrictions, rights of
way, easements and other matters of public record as of the date of recording
which are acceptable to mortgage lending institutions generally, which are
specifically referred to in the related Title Policy and which do not,
individually or in the aggregate, materially and adversely affect the current
use, value or marketability of the related Real Property Interest, or which are
insured over in the related title policy, (3) exceptions and exclusions
specifically referred to in such related Title Policy and (4) other matters to
which like properties are commonly subject which do not, individually or in the
aggregate, materially interfere with the benefits of the security intended to be
provided by the Mortgage or the current use of such Real Property Interest.
"Person" means any individual, partnership, corporation, trust, limited
liability company, unincorporated organization, Governmental Entity or any other
entity.
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"Real Property Interest" means, with respect to each Loan secured in whole
or in part by a Mortgage, the real property described in such Mortgage,
including all easements, rights, appurtenances, tenements, rents, royalties,
mineral, oil and gas rights and profits, water, water rights and water stock
appurtenant to such property described in such Mortgage.
"Security Agreement" means, with respect to any Loan secured by Collateral
other than Real Property Interests and Improvements, the pledge, security
agreement or similar instrument that secures the related Note and creates a lien
on the related Collateral.
"Title Policy" has the meaning set forth in Section VI. B. 16 of this
Agreement.
"UCC" means the Uniform Commercial Code as in effect from time to time in
each applicable jurisdiction.
All capitalized terms not defined in this Agreement shall have the
meanings provided in the P&A Agreement.
II. AGREEMENT TO PURCHASE.
On the Closing Date, Seller agrees to sell, and Purchaser agrees to
purchase, on the terms and conditions stated below, the loans described in the
schedules attached hereto as Schedule I and Schedule II (which shall hereafter
be referred to as the "Loan Schedules") as updated as of a date no more than two
(2) Business Days prior to the Closing Date. The Loan Schedules shall be agreed
to and signed by the Seller and Purchaser and shall set forth the names of the
Obligors and the date of the Note for each Loan and as of the date of the Loan
Schedule, the aggregate principal balance of each Loan, the accrued and unpaid
interest of each Loan as of that date and the purchase price for each Loan.
Purchaser shall be under no obligation to purchase a loan which is not included
in the Loan Schedules. Specifically, Purchaser shall not be obligated to
purchase a loan approved by Seller after the date hereof unless Purchaser has
specifically agreed to purchase such loan in writing, subject to such loans'
compliance with the terms and conditions of this Agreement at the time of the
Closing.
III. PURCHASE OF LOANS.
A. At the Effective Time, subject to the terms and conditions set forth
herein, Seller will sell, convey, assign and transfer to Purchaser and Purchaser
shall purchase from Seller, at the price and upon the terms and conditions set
forth herein, all of Seller's right, title and interest, as of the Effective
Time, in and to the Loans, free and clear of all Encumbrances.
B. Purchaser shall pay Seller the Loan Amount.
IV. RIGHTS TO PAYMENTS ON THE LOANS.
Purchaser shall be entitled to all payments of principal and interest and
other recoveries on the Loans received by Seller after the delivery of the final
Loan Schedules, to be delivered no more than two (2) Business Days before the
Closing, and prior to the Closing Date, and all payments of principal and
interest and other recoveries on the Loans made on and after the Closing Date
within two (2) Business Days after receipt thereof.
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V. CLOSING.
The closing of the purchase and sale of the Loans shall take place on the
Closing Date and shall be subject to the conditions set forth in the P&A
Agreement and the consummation of all of the transactions contemplated
thereunder and the purchase of the Premises.
The obligation of Purchaser to purchase the Loans as contemplated by this
Agreement shall also be subject to each of the following additional conditions:
A. all of the representations and warranties under this Agreement
(including, without limitation, in the attached Schedules) by Seller shall be
true and correct in all material respects as of the Closing Date, and no default
by Seller or event which, with the giving of notice or the passage of time or
both, would constitute an event of default by Seller under this Agreement shall
have occurred;
B. Purchaser shall have received executed originals of the Closing
Documents specified in Section 9 of this Agreement; and
C. all other terms and conditions of the Seller under this Agreement
shall have been complied with in all material respects.
The obligation of Seller to sell the Loans as contemplated by this
Agreement shall also be subject to each of the following additional conditions:
A. all of the representations and warranties under this Agreement by
Purchaser shall be true and correct in all material respects as of the Closing
Date, and no default by Purchaser or event which, with the giving of notice or
the passage of time or both, would constitute an event of default by Purchaser
under this Agreement shall have occurred; and
B. all other terms and conditions of the Purchaser under this
Agreement shall have been complied with in all material respects.
VI. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
A. Seller represents and warrants to Purchaser as of the date of
this Agreement, and shall be deemed to restate on the Closing Date, as follows:
1. The execution and delivery of this Agreement by Seller, and the
performance and compliance with the terms of this Agreement by Seller,
will not violate Seller's organizational documents or constitute an event
which, with notice or lapse of time or both, would constitute a default
under, or result in the breach of, any material agreement or other
instrument to which Seller is a party or by which it is bound.
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2. Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement and
has duly executed and delivered this Agreement.
3. Assuming due authorization, execution and delivery by Purchaser,
this Agreement constitutes a valid, legal and binding obligation of
Seller, enforceable against Seller in accordance with its terms, subject
to (A) applicable conservatorship, receivership and other laws affecting
the enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
4. Seller is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental authority, which violation is likely
to adversely affect the ability of Seller to perform its obligations under
this Agreement or to materially and adversely affect the financial
condition of Seller.
5. No litigation is pending or, to Seller's knowledge, threatened
against Seller that, if determined adversely to Seller, would prohibit
Seller from entering into this Agreement or that is likely to adversely
affect the ability of Seller to perform its obligations under this
Agreement or to materially and adversely affect the financial condition of
Seller.
6. Seller has not dealt with any broker, investment banker, agent or
other person that may be entitled to any commission or compensation in
connection with the sale of the Loans by Seller or the consummation of any
other transactions contemplated hereby.
B. Seller represents and warrants to, and covenants with, Purchaser
with respect to each Loan, that as of the date of each initial Loan Schedule and
shall be deemed to restate on the Closing Date:
1. The information concerning each Loan set forth on each schedule
attached hereto is true and correct as of the date indicated thereon. All
information in the Loan Files has been provided to Purchaser and is true
and correct in all material respects as of the date indicated therein. All
information on Schedule VIII has been provided to Purchaser and is true
and correct in all material respects as of the date indicated therein.
2. All of the Loan Documents and all signatures therein are genuine
and represent the legal, valid and binding obligation of the Obligor to
Seller, enforceable against each Obligor in accordance with their terms
7
except as such enforcement may be limited by the application of
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law). No Loan has been satisfied, subordinated,
assigned or rescinded, in whole or in part, or impaired, altered, waived,
canceled or modified, nor, to the knowledge of Seller, has any Equipment,
Improvement or Real Property Interest been subleased since the origination
of the Loan, in whole or in part.
3. Each of the Loans is free and clear of all Encumbrances and, to
Seller's knowledge, the related Collateral is free and clear of all
Encumbrances. Seller is the sole owner of the right to receive all
principal, interest and all other amounts required to be paid to the
lender under such Loan. Seller is the sole owner and holder of such Loan
and has the full right, power and authority with respect to such Loan.
Seller is not subject to any interest or participation of, or agreement
with, any third party, to sell, transfer and assign the same or any
portion thereof. Seller is the original payee of the note representing
each Loan, except for Loans originated by the National Bank of Greece
which shall be endorsed by the National Bank of Greece to Seller prior to
closing. With respect to each of the Loans, each assignment of the related
Mortgage and/or Security Agreement is in recordable form and such
assignment, together with the related Note and all assignments of any
other related Loan Documents, constitute legal, valid and binding
assignments of all such Loan Documents from Seller and legally and validly
conveys all right, title and interest of Seller in and to such Loans. No
broker or other individual or entity is entitled to any unpaid commission
or other compensation with respect to any Loan.
4. Each Guarantee is genuine and constitutes the legal, valid and
binding obligation of the guarantor thereunder, enforceable in accordance
with its terms except as such enforcement may be limited by fraudulent
conveyance, moratorium, bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law). No notice to or consent
of any guarantor under any Guarantee is required to consummate the
transactions contemplated herein or, except as may be required by
applicable law, to proceed against the Collateral or the guarantor in an
event of default.
5. Seller has delivered to Purchaser all of the Loan Files in
respect of each Loan or will do so at the Closing. Seller has custody of
all Loan Files. Except with respect to the Notes for which Seller delivers
a Lost Note Affidavit and Indemnity as reasonably acceptable to Purchaser,
each Note delivered to Purchaser is the only original of such Note. The
Loan Documents with respect to each Loan are the only documents executed
by Seller (or, if the Loan was assigned to Seller, by the originator
8
thereof) and the Obligor with respect to such Loan and the related
Collateral. The entire agreement between Seller and each Obligor (whether
originated by Seller or a third party) is contained in the Loan Documents
and there are no warranties, agreements or options not set forth therein.
Other than the Loan Documents, there are no agreements with respect to the
Collateral between Seller and any Obligor.
6. No Obligor has asserted in writing to Seller any defense, right
or rescission, counterclaim or set off to its obligations with respect to
any Loan. Neither Seller nor any of it agents, employees or
representatives has made any misrepresentations to any Obligor.
7. Except as set forth in Schedule III, to the knowledge of Seller,
there are no delinquent taxes, ground rents, water charges, sewer rents,
assessments or other outstanding charges payable to a Governmental Entity
affecting any Collateral securing any Mortgage.
8. Except as set forth in Schedule IV, no Hazardous Substances have
been disposed of or identified on, under or at any Real Property Interest
and Seller has not received any assertion in writing from any person that
any of such events has occurred with respect to any Equipment. There is no
remediation in progress on any Real Property Interest and Seller has not
received any assertion in writing from any person that any of such events
has occurred with respect to any Equipment, nor is there any remediation
disclosed or identified in any environmental report or analysis performed
in connection with any Real Property Interest or is necessary to comply
with any Environmental Law and Seller has not received any assertion in
writing from any person that any of such events has occurred with respect
to any Equipment. Seller has never acquired title to any Collateral for
the Loans, by virtue of realizing upon its security interest thereon, by
virtue of foreclosure or deed-in-lieu of foreclosure, or otherwise.
9. Each Loan constitutes and arose out of a bona fide business
transaction entered into in the ordinary course of Seller's business.
10. All principal, interest and any other amounts due with respect
to each Loan are payable in United States dollars in regularly scheduled
installments.
11. The Interest Rate on each of the Loans complies with, or is
exempt from, all applicable federal and state laws, regulations and other
requirements pertaining to usury.
12. All escrow deposits and impounds relating to any Mortgage are
under the sole control of Seller and all escrow deposits or impounds
relating to any Mortgage required to be deposited with Seller by any
Obligor have been deposited with Seller.
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13. All mortgage recording taxes and recording and filing fees
relating to the origination of the Loans have been paid.
14. Except as set forth on Schedule V (setting forth the list of
revolving Loans and approved but not yet fully funded Loans, including
construction loans), the proceeds of each Loan have been fully disbursed,
and there is no requirement for future advances with respect thereto. Any
and all requirements as to completion of any on-site or off-site
improvement and as to disbursements of any escrow funds therefore that
were to have been complied with have been complied with, and all costs,
fees and expenses incurred in making or closing such Loan (including,
without limitation, recording and filing fees) have been paid.
15. Except as set forth in Schedule VI, Seller has not received
notification from any Person that a Governmental Entity has asserted that
any Collateral is in non-compliance with any laws or regulations, or is
being used, operated or occupied unlawfully.
16. Seller has, with respect to each Mortgage in respect of a Loan,
a valid and enforceable American Land Title Association ("ALTA") (or state
equivalent where ALTA is not available) lender's policy of title insurance
which (a) has been issued by and is a binding obligation of a title
insurer qualified to do business in the jurisdiction where the related
Real Property Interest is located in connection with such Mortgage in an
amount not less than the original principal amount of the Loan(s) secured
by such Mortgage, (b) is presently in full force and effect, (c) with
respect to which all premiums have been paid in full and (d) insures
Seller, and its successors and assigns, that the Mortgage relating thereto
is a valid first lien on the related Real Property Interest therein
described and that the related Real Property Interest is otherwise free
and clear of all encumbrances and liens having priority over the lien of
the Mortgage, subject only to Permitted Encumbrances (each such policy a
"Title Policy"). Each Title Policy is assignable without the consent of or
any notification to the insurer. No claims have been made by Seller under
such policy and no Person claiming through Seller has done, by act or
omission, and Seller has no knowledge of any matter, that would impair or
diminish the coverage of such policy.
17. There is not any reason Purchaser will not be able to obtain an
endorsement of the Title Policies in Purchaser's name.
18. The information furnished to Purchaser by Seller in connection
with Purchaser's investigation of each Loan is true and correct in all
respects and does not omit any information necessary to make the
statements contained therein not misleading.
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19. Except as set forth in Schedule VII, there is no action, suit,
legal or arbitration proceeding or administrative proceeding or
investigation, including, without limitation, any bankruptcy or insolvency
proceeding, any receivership proceeding, any foreclosure proceeding or any
eminent domain proceeding, pending, or to Seller's knowledge, threatened,
against or affecting any Loan, Loan Document, Obligor or Collateral
(including, without limitation, any litigation commenced by or against the
Seller).
20. Each Loan has been originated, documented and serviced in
compliance with all applicable laws and regulations in all material
respects. Seller has not received any written notice of violation of any
law or regulation relating to any of the Loans or the ownership or
operation thereof. Any and all other requirements of any federal, state or
local laws applicable to the origination and sale of such Loan have been
complied with. No Obligor has any right of rescission or usury defense
with respect to any related Loan, and there are no circumstances with
respect to any Loan which could reasonably serve as the basis for any
claim of set-off, counterclaim or defense by any Obligor.
21. Seller is not subject to any judgment, writ, decree, injunction
or order of any federal, foreign, state or local court or Governmental
Entity relating to the acquisition, collection, administration or
enforcement of any Loan or the foreclosure, acquisition or disposition of
any Collateral or, in each case, any transactions or activities incidental
thereto.
22. The transfer and assignment of the Loans by Seller pursuant to
this Agreement (i) does not constitute a sale of all or substantially all
of Seller's assets and (ii) is not subject to the bulk transfer, bulk
sales or any similar statutory provisions in effect in any applicable
jurisdiction.
23. Seller has administered and serviced each Loan in the ordinary
course of its business, consistent with past practices, and has not (a)
amended, modified, altered, satisfied, impaired, cancelled, rescinded or
waived any provision of any Loan Documents, or extended, renewed,
supplemented, reduced, subordinated, or terminated the term of, or
anticipated the Payments under or accepted the surrender of, any Loan, (b)
written off any Loan, (c) commenced or initiated any lawsuit, action or
proceeding with respect to any Loan, (d) released any Obligor under any
Loan or (e) released, taken possession of, or caused any other Person to
take possession of, any Collateral.
24. Seller agrees to purchase from Purchaser, simultaneously with
the Closing, a participation in each Loan, the unpaid balance of which
when added to all other obligations of any Obligor to Purchaser (as
determined by the Purchaser in its sole discretion) (the "Total
Obligations") would exceed the lesser of $3,700,000 or the Purchaser's
lending limit at the Effective Time. The participation shall be in the
amount by which the Total Obligations exceed the lesser of $3,700,000 or
the Purchaser's lending limit at the Effective Time and shall be made
pursuant to the terms of a participation agreement in form and substance
mutually agreed upon by the parties.
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25. During the period from the date of this Agreement to the
Effective Time, except as expressly contemplated or permitted by this
Agreement or the P&A Agreement, Seller shall not, without the prior
written consent of the Purchaser, which consent shall not be unreasonably
withheld or delayed: (i) except for commitments issued prior to the date
of this Agreement which have not yet expired and which have been disclosed
on Schedule V make any loans, advances or renewals other than in the
ordinary course of business consistent with past practices; (ii) disburse
any of the Loans to any individual, corporation or other entity except in
the ordinary course of business consistent with past practice, pursuant to
contacts or agreements in force since the date of this Agreement; (iii)
change in any material respect its loan policies and procedure, except as
required by regulatory authorities; (iv) take any action that is intended
or may reasonably be expected to result in any of its representation and
warranties and covenants set forth in this Agreement being or becoming
untrue in any materially respect at any time prior to the Effective Time
or any of the conditions to the purchase of the Loans not being satisfied
or in violation of any of the provisions of this Agreement, except in
every case as may be required by applicable law; (v) foreclose on or take
a deed or title to any commercial real estate without first conducting a
Phase One environmental assessment of the property or foreclose on any
commercial real estate if such environmental assessment indicates the
presence of Hazardous Materials in amounts which, if such foreclosure were
to occur, would be material; (vi) authorize or agree to make any
commitments to actions prohibited by this Section.
26. To Seller's knowledge, with respect to the Obligors, (i) Seller
is not operating in violation in any material respect of the federal Bank
Secrecy Act, as amended, and its implementing regulations (31 C.F.R. Part
103), the USA Patriot Act of 2001, Public Law 107-56 (the "USA Patriot
Act"), and the regulations promulgated thereunder, or any order issued
with respect to an anti-money laundering by the U.S. Department of
Treasury's Office of Foreign Assets Control, and (ii) Seller is in
satisfactory compliance in all material respects with the applicable
privacy of customer information requirements contained in any federal and
state privacy laws and regulations, including, without limitation, in
Title V of the Gramm-Leach-Bliley Act of 1999 and regulations promulgated
thereunder.
27. During the period from the date of this Agreement to the
Effective Time, except as expressly contemplated or permitted by this
Agreement, the Seller shall not, without the prior written consent of the
Purchaser, which consent shall not be unreasonably withheld or delayed:
take any action that is intended or may reasonably be expected to result
in any of its representations and warranties set forth in this Agreement
being or becoming untrue in any material respect at any time prior to the
Effective Time or in any of the conditions of the purchase of the Loans
set forth in this Agreement not being satisfied or in a violation of any
provisions of this Agreement, or any necessary rules of any governmental
authority.
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C. Seller and Purchaser agree that the representations, warranties and
covenants made by Seller to Purchaser in this Section VI shall also apply to
each REIT Loan (as that term is defined in the Loan Purchase Agreement between
Purchase and Omega Commercial Mortgage Corp. (the "REIT") dated February 22,
2005 (the "REIT Agreement"). In the event of REIT's breach of a representation,
warranty or covenant related to a REIT Loan, which breach materially and
adversely affects the value of a REIT Loan or Purchaser's liability with respect
to such REIT Loan, and the REIT is unable to meets its repurchase obligations to
Purchaser with respect to such REIT Loan, Seller agrees to purchase from
Purchaser such REIT Loan at the repurchase price set forth in the REIT
Agreement.
VII. REPURCHASE.
A. It is understood and agreed that the (A) representations, warranties
and covenants set forth in Section VI.A. and VI.B. (1), (2), (3), and (4), shall
survive for a period of three (3) years following the Closing Date and (B) the
remaining representations warranties and covenants set forth in Section VI.B
shall survive for a period of two (2) years following the Closing Date. In the
event of Seller's breach of a representation, warranty or covenant set forth in
Section VI hereof, which breach materially and adversely affects the value of a
Loan or Purchaser's liability with respect to such Loan (a "Material Breach"),
Seller shall, at Purchaser's option, repurchase such Loan at a repurchase price
(the "Repurchase Price") equal to an amount equal to (a) the Purchase Price paid
by Purchaser for such Loan, together with all accrued and unpaid interest on
such Loan at the related Interest Rate or default rate (if applicable) to but
not including the date of repurchase, minus (b) all payments of principal
received by, or on behalf of, Purchaser in connection with such Loan. Purchaser
shall promptly notify Seller of a Material Breach, with such notice to be given
in writing not more than thirty (30) days after Purchaser gains knowledge of
such Material Breach (the "Breach Notice"). Any repurchase of a Loan or Loans
pursuant to the foregoing provisions of this Section VII shall occur on a date
designated by Purchaser (which in any event shall not be later than thirty (30)
days following delivery of the Breach Notice) and shall be accomplished by wire
transfer of immediately available federal funds on the repurchase date to an
account designated by Purchaser. Seller and Purchaser acknowledge that time is
of the essence with respect to the timing of such notice and repurchase date.
Purchaser shall release its interest in the Loan promptly upon its receipt of
the Repurchase Price and shall immediately execute all transfer and assignment
documents, in each case without recourse, representation or warranty of any
kind, necessary to effect the reconveyance of such Loan to Seller, which
documents shall be prepared by Seller at its expense and shall be reasonably
acceptable to Purchaser. Notwithstanding the fact that a representation,
warranty or covenant contained in Section VI hereof may be limited to Seller's
knowledge, such limitation shall not relieve the Seller of its repurchase
obligation under this Section VII. Except as described below, if Purchaser
renews a Loan or consents to a material modification of the terms of the Loan or
the related Collateral for such Loan (other than a renewal or modification
approved by Seller prior to the Closing Date), the Seller thereafter will have
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no liability or obligation to Purchaser to pay the Repurchase Price with respect
to any Material Breach (other than a Material Breach arising due to a breach of
Section VI.B (8) or (23)); provided, that Seller shall cooperate in all
reasonable respects and in a timely manner with Purchaser to cure such Material
Breach. However, notwithstanding the foregoing, the parties acknowledge that for
the purposes of this Section VII: any renewal of a Loan within six months
following the Closing Date shall not constitute a renewal of the Loan, provided
(i) the amount of the Loan is not increased and (ii) there is no modification of
the terms of the Loan or the related Collateral for such loan. A modification or
amendment solely limited to a rate adjustment shall not constitute a Loan
Renewal.
B. Except as provided in Section XII hereof, the obligations of Seller to
repurchase any Loan as contemplated by Section VII.A hereof, constitutes the
exclusive remedy of Purchaser with respect to any breach of a representation,
warranty or covenant set forth in Section VI.B hereof. If Seller repurchases any
Loan pursuant to this Section VII, Purchaser, following receipt by Purchaser of
the Repurchase Price therefore, promptly will deliver or cause to be delivered
to Seller, all Loan Documents with respect to such Loan endorsed (without
recourse and without representation or warranty of any kind) and assigned to
Seller and all Loan Documents. Purchaser agrees to pay to Seller, within two (2)
Business Days after receipt thereof, any Loan payments received by Purchaser
after the repurchase date.
VIII. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER.
Purchaser represents and warrants to, and covenants with, Seller as of the
date of this Agreement, and shall be deemed to restate as of the Closing Date,
as follows:
A. The execution and delivery of this Agreement by Purchaser, and
the performance and compliance with the terms of this Agreement by Purchaser,
will not violate Purchaser's organizational documents or constitute an event
which, with notice or lapse of time or both, would constitute a default under,
or result in the breach of, any material agreement or other instrument to which
Purchaser is a party or by which it or its assets are bound.
B. Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement and has duly executed
and delivered this Agreement.
C. Assuming due authorization, execution and delivery by Seller,
this Agreement constitutes a valid, legal and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally and (B) general
principles of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
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D. Purchaser is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of any federal, state
or local governmental authority, which violation is likely to materially and
adversely affect either the ability of Purchaser to perform its obligations
under this Agreement or the financial condition of Purchaser.
E. No litigation is pending or, to Purchaser's knowledge, threatened
against Purchaser that, if determined adversely to Purchaser, would prohibit
Purchaser from entering into this Agreement or that is likely to materially and
adversely affect either the ability of Purchaser to perform its obligations
under this Agreement or the financial condition of Purchaser.
F. Purchaser has not dealt with any broker, investment banker, agent
or that may be entitled to any commission or compensation in connection with the
purchase of the Loans by Purchaser or the consummation of any other transactions
contemplated hereby.
G. Purchaser is an "accredited" investor as that term is defined in
Rule 501 of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act").
H. Purchaser acknowledges that it has been or, pursuant to the terms
of this Agreement, will be given the opportunity to review, the Loan Files and
the information set forth in Schedule VIII and that such information constitutes
all information requested except for that which Seller stated it did not have.
Purchase acknowledges that it has made its decision to purchase the Loans based
on its independent review of such information and is not relying on any
representation or warranty, either express or implied, made by Seller other than
as expressly set forth in this Agreement.
I. During the period from the date of this Agreement to the
Effective Time, except as expressly contemplated or permitted by this Agreement,
the Purchaser shall not, without the prior written consent of the Seller, which
consent shall not be unreasonably withheld or delayed: take any action that is
intended or may reasonably be expected to result in any of its representations
and warranties set forth in this Agreement being or becoming untrue in any
material respect at any time prior to the Effective Time or in any of the
conditions of the purchase of the Loans set forth in this Agreement not being
satisfied or in a violation of any provisions of this Agreement, or any
necessary rules of any governmental authority.
IX. CLOSING DOCUMENTS.
The closing documents to be delivered on the Closing Date (the "Closing
Documents") shall consist of each of the following:
A. the original executed Notes related to the Loans, each properly
endorsed (without recourse, except as provided in this Agreement) to the order
of "The First National Bank of Ipswich and its successors and assigns."
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B. Seller shall deliver the remainder of the Loan Files in Seller's
possession to Purchaser no later than five (5) Business Days from the Closing
Date.
C. Seller shall also deliver to Purchaser no later than five (5)
Business Days from the Closing Date:
1. an original executed assignment of the Mortgage or an
executed assignment of a Security Agreement in favor of "The First
National Bank of Ipswich and its successors and assigns" and, in the
case of a Mortgage assignment, in recordable form;
2. an original executed omnibus assignment of any related Loan
Documents in favor of "The First National Bank of Ipswich and its
successors and assigns" and, if applicable, an original executed
assignment of any related Assignment of Leases (if such item is a
document separate from the Mortgage), in favor of "The First
National Bank of Ipswich and its successors and assigns" in
recordable form;
3. executed original UCC financing statements on Form UCC-1
together with the executed original UCC financing statements on Form
UCC-2 or UCC-3, as appropriate, prepared by Purchaser in favor of
"The First National Bank of Ipswich and its successors and assigns;"
and
4. an executed bill of sale in a form reasonably acceptable to
Purchaser for the Loans.
D. Purchaser shall deliver at the Closing substitute letters of
credit or an unconditional guarantee that will replace letters of credit
previously issued by Seller which are set forth in Schedule IX attached hereto.
X. COSTS.
Each party shall pay its own costs and expenses in connection with this
Agreement and the transactions contemplated hereby, including, but not by way of
limitation, all regulatory fees, attorneys' fees, accounting fees and other
expenses.
XI. POST-CLOSING MATTERS.
A. Servicing. Seller shall transfer the servicing rights with respect to
the Loans at the Closing.
B. Loan Payments. Seller shall forward to Purchaser all Loan payments
received by Seller after the Closing Date within two (2) Business Days of their
receipt.
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C. Notices to Insurers. As to each title, hazard and other insurance
policy assigned to Purchaser, Purchaser is responsible for notifying the insurer
or other appropriate person after the Closing Date regarding the assignment of
Seller's interest to Purchaser. Seller will have no obligation to Purchaser with
respect to the giving of such notice, provided, however, Seller agrees to join
with Purchaser in such communications if Purchaser so requests and shall
cooperate with Purchaser in all reasonable respects in order to effectuate such
notice.
D. Notices to Borrowers. Purchaser is responsible for notifying each
borrower of a Loan after the Closing Date regarding the assignment of Seller's
interest in such Loan to Purchaser. Seller will have no obligation to Purchaser
with respect to the giving of such notice, provided, however, Seller agrees to
join with Purchaser in such communications if Purchaser so requests and shall
cooperate with Purchaser in all reasonable respects in order to effectuate such
notice.
XII. INDEMNIFICATION.
A. Seller's Indemnification. Notwithstanding any other provision of this
Agreement to the contrary, Seller agrees to defend, indemnify and hold Purchaser
harmless from and against any loss, fee, cost, expense, damage, liability or
obligation which Purchaser may receive, suffer, or incur, including reasonable
attorney's fees ("Losses"), in connection with any claim made or action
instituted against Purchaser arising or claimed to have arisen from (a) Seller's
actions or inactions prior to the Effective Time with respect to the Loans or
the Collateral or (b) the breach by Seller of any representation, warranty or
covenant made by Seller contained in this Agreement; provided, that Purchaser
notify Seller of any such claim or action within fifteen (15) Business Days
after Purchaser has received actual notice that the same has been made or
instituted, as the case may be, but failure to so notify Seller shall not
relieve Seller from any liability hereunder to the extent it is not materially
prejudiced as a result thereof, and in any event shall not relieve it from any
liability which it may have otherwise than on account of this Agreement. Seller
may assume the defense of any such claim or action by attorneys of Seller's own
choosing, and reasonably acceptable to Purchaser, at its expense but Seller may
not settle such claim or action without Purchaser's prior written consent, which
will not be unreasonably delayed or withheld.
B. Purchaser's Indemnification. Notwithstanding any other provision of
this Agreement to the contrary, Purchaser agrees to defend, indemnify and hold
Seller harmless from and against any of its Losses in connection with any claim
made or action instituted against Seller relating to or arising out of or
claimed to have arisen from Purchaser's actions or inactions after the Effective
Time with respect to the Loans or the breach by Purchaser of any representation,
warranty or covenant made by Purchaser contained in this Agreement; provided,
that Seller notify Purchaser of any such claim or action within fifteen (15)
Business Days after Seller has received actual notice that the same has been
made or instituted, as the case may be, but failure to so notify Purchaser shall
not relieve Purchaser from any liability hereunder to the extent it is not
materially prejudiced as a result thereof, and in any event shall not relieve it
from any liability which it may have otherwise than on account of this
Agreement. Purchaser may assume the defense of any such claim or action by
attorneys of Purchaser's own choosing, and reasonably acceptable to Seller, at
its expense but Purchaser may not settle such claim or action without Seller's
prior written consent, which will not be unreasonably delayed or withheld.
17
XIII. CONFIDENTIALITY.
Purchaser and Seller agree to maintain all Confidential Information in
accordance with the terms of the P&A Agreement. The undertakings with regard to
confidentiality shall survive termination of this Agreement and the Closing. It
is understood that the Agreement and the Schedules attached hereto shall be
filed with various federal and state banking regulators, including but not
limited to the Office of the Comptroller of the Currency.
XIV. TERMINATION.
I. THIS AGREEMENT SHALL TERMINATE IN THE EVENT THAT THE P&A AGREEMENT IS
TERMINATED PURSUANT TO SECTION 9.1 THEREOF. IN THE EVENT OF TERMINATION OF THIS
AGREEMENT, THIS AGREEMENT SHALL FORTHWITH BECOME VOID AND THERE SHALL BE NO
LIABILITY ON THE PART OF ANY OF THE PARTIES HERETO, EXCEPT FOR SECTION X OF THIS
AGREEMENT WHICH SHALL REMAIN IN FULL FORCE AND EFFECT AND EXCEPT THAT NOTHING
HEREIN SHALL RELEASE ANY PARTY FROM LIABILITY FOR A BREACH OF THIS AGREEMENT
PRIOR TO TERMINATION HEREOF.
XV. NOTICES.
Any notice or other communication required or permitted hereunder shall be
deemed given if delivered in person, by courier or if sent by registered or
certified mail, postage prepaid, return receipt requested or by express mail,
overnight delivery or facsimile transmission (followed by hard copy) addressed
as follows:
(a) If to Purchaser:
The First National Bank of Ipswich
31 Market Street
Ipswich, MA 01938
Attention:Donald P. Gill
President and Chief Executive Officer
Telephone Number: (978) 356-3700
Facsimile Number: (978) 356-5937
With copies to:
Craig and Macauley Professional Corporation
600 Atlantic Avenue
Boston, MA 02110
Attention: David F. Hannon, Esq.
Telephone Number: (617) 367-9500
Facsimile Number: (617) 742-1788
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(b) If to Seller:
Thomas M. O'Brien
President and Chief Executive Officer
Atlantic Bank of New York
960 Avenue of the Americas
New York, New York 10001
Facsimile: (212) 714-7418
With copies to:
James S. Maxwell, Esq.
General Counsel
Atlantic Bank of New York
960 Avenue of the Americas
New York, New York 10001
Facsimile: (212) 967-2557
and
Matthew Dyckman, Esq.
Thacher Proffitt & Wood LLP
1700 Pennsylvania Avenue, NW
Washington, DC 20006
Facsimile: (202) 626-1930
Any such notice or communication if mailed shall be deemed to have been
given as of five (5) Business Days after the date mailed or, if delivered in
person, shall be deemed given on the date so delivered. Either party may specify
a different address by giving notice to that effect to the other party.
XVI. SURVIVAL OF AGREEMENT.
The provisions of this Agreement shall survive the Closing Date and for so
long thereafter as is necessary to permit the parties to exercise their
respective rights or perform their respective obligations hereunder.
XVII. SEVERABILITY.
Any part, provision, representation or warranty of this Agreement that is
prohibited or which is held to be void or unenforceable shall be ineffective to
the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof. Any part, provision, representation or warranty of
this Agreement which is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall be ineffective, as to such jurisdiction,
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction as to any Loan shall not invalidate or render unenforceable such
19
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof. If the invalidity of any part, provision,
representation or warranty of this Agreement shall deprive any party of the
economic benefit intended to be conferred by this Agreement, the parties shall
negotiate, in good faith, to develop a structure that, as nearly as possible,
has the same economic effect as does this Agreement without regard to such
invalidity.
XVIII. COUNTERPARTS.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
XIX. GOVERNING LAW.
This Agreement shall be construed and enforced in accordance with the laws
of the Commonwealth of Massachusetts, to the extent that Federal law does not
control.
XX. SUCCESSORS AND ASSIGNS.
All of the terms and provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective transferees,
successors and assigns, but this Agreement may not be assigned by either party
without the written consent of the other. This Agreement is personal to the
parties hereto and their successors and permitted assigns and is not intended
for the benefit of and shall not be relied upon by any other person and no such
person (or any other person acting on such person's behalf) shall be entitled to
the benefit of or to enforce this Agreement; provided, that this Agreement may
be relied upon by any governmental or regulatory agency whose approval or
consent is a condition to the consummation by either party of the transactions
contemplated by this Agreement. The parties agree that if, prior to the Closing
Date, either Seller or Purchaser is party to a merger or acquisition, the
transactions contemplated by this Agreement shall be consummated with the
surviving entity of such merger or acquisition.
XXI. FURTHER AGREEMENTS.
Seller and Purchaser each agree to execute and deliver to the other such
reasonable and appropriate additional documents, instruments or agreements, at
no material cost, as may be necessary or appropriate to effectuate the purposes
of this Agreement.
XXII. PUBLIC ANNOUNCEMENTS.
Neither Purchaser nor Seller shall cause to be made any advertisement,
solicitation or public announcement regarding this Agreement or the transactions
contemplated hereby between the date hereof and the Effective Time without the
prior approval of the other party, except as may otherwise be required by law in
which case the other party shall be provided a reasonable opportunity to review
20
and comment upon such advertisement, solicitation or public announcement prior
to its dissemination. Purchaser shall, between the date hereof and the Effective
Time, at Purchaser's expense and with the consent of Seller, be permitted to
communicate with the customers of the Branch (as defined in the P&A Agreement)
concerning the transactions provided for herein. Any consent or approval
required by this Section 22 shall not be unreasonably withheld.
XXIII. AMENDMENTS.
Neither this Agreement, nor any provision hereof may be changed, waived,
discharged or terminated orally, but only by a written instrument signed by both
Seller and Purchaser.
XXIV. INTERPRETATION.
For all purposes of this Agreement, initially capitalized terms used
herein have the meanings ascribed hereto in this Agreement, except as otherwise
provided in this Agreement.
XXV. INTENTION OF THE PARTIES.
It is the intention of the parties that Purchaser is purchasing, and
Seller is selling, the Loans and not a debt instrument of Seller or any other
security. Accordingly, each party intends to treat the transaction for federal
income tax purposes, and each transaction shall be reflected on Seller's books
and records, tax returns, balance sheet and other financial statements, as a
sale by Seller, and a purchase by Purchaser, of the Loans.
XXVI. MODIFICATION.
No supplement, modification or amendment of this Agreement shall be valid
unless executed in writing by both parties hereto.
XXVII. WAIVERS.
Either party may waive any one or more conditions to the performance of
its obligations (other than required regulatory approvals) or breaches of, or
defaults under, this Agreement by the other party and proceed to the Closing of
the transactions contemplated hereby without prejudice to any other rights or
remedies to which such party may otherwise be entitled. No waiver of any
provision of, breach of or default under this Agreement shall be considered
binding unless executed in writing by the party granting such waiver. No waiver
of any provision of this Agreement shall be deemed to constitute a waiver of any
other provision hereof or any subsequent breach or default (whether or not
similar) nor shall any such waiver constitute a continuing waiver.
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XXVIII. SCHEDULES AND HEADINGS.
All Schedules referred to herein shall constitute a part of this
Agreement. Section, paragraph and subparagraph headings are not to be considered
part of this Agreement, are for convenience and reference only, and are not to
be deemed to be full or accurate descriptions of the contents of any paragraph
or subparagraph.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
ATLANTIC BANK OF NEW YORK THE FIRST NATIONAL BANK OF IPSWICH
By: /s/ Thomas M. O'Brien By: /s/ Donald P. Gill
-------------------------- -------------------------
Thomas M. O'Brien Donald P. Gill
President & Chief Executive President and Chief Executive
Officer Officer