Exhibit 2.3
LOAN PURCHASE AGREEMENT
between
THE FIRST NATIONAL BANK OF IPSWICH
and
OMEGA COMMERCIAL MORTGAGE CORP.
TABLE OF CONTENTS
Page
SECTION I Definitions.................................................1
SECTION II Agreement to Purchase.......................................5
SECTION III Purchase of REIT Loans......................................5
SECTION IV Rights to Payments on the REIT Loans........................5
SECTION V Closing.....................................................6
SECTION VI Representations, Warranties and Covenants of REIT...........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 REIT Loans To Be Purchased at Par (including
Exceptions from REIT Loan policy and location of collateral)
SCHEDULE II Schedule of REIT Loans To Be Purchased Below Par (including
Exceptions from REIT Loan policy and location of collateral)
SCHEDULE III Delinquent Charges on Collateral
SCHEDULE IV Hazardous Substances
SCHEDULE V Revolving REIT Loans and approved but not yet funded
construction and other REIT Loans
SCHEDULE VI Governmental Notifications
SCHEDULE VII Litigation
SCHEDULE VIII Material Information
This REIT 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 OMEGA COMMERCIAL MORTGAGE CORP., a Delaware corporation
("REIT").
RECITALS
WHEREAS, REIT desires to sell, and Purchaser desires to purchase, certain
of the loans of REIT 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 REIT 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
REIT 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 REIT Loan, including, without limitation, the Equipment, Real Property
Interests and Improvements pledged by such Obligor as collateral under the
related REIT 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 REIT Loans. The foregoing shall include, without limitation,
REIT'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 REIT Loan, the day of the month set
forth in the related Note on which each monthly payment on such REIT 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 REIT Loan, any and all personal
property which would constitute "equipment" under the UCC securing such REIT
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 REIT 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 REIT
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
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
2
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 REIT 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 REIT Loan, the annualized rate
at which interest is scheduled (in the absence of a default) to accrue on such
REIT Loan from time to time during any Interest Accrual Period in accordance
with the related Note and applicable law.
"Mortgage" means a mortgage, deed of trust, leasehold mortgage or
leasehold deed of trust given by an Obligor to secure the repayment to REIT of a
REIT Loan and the performance of any other obligations required under the
related REIT Loan Documents.
"Note" means the original executed promissory note evidencing the
indebtedness of the Obligor under a REIT 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 REIT Loan or credit enhancement, any
Person that is an obligor, borrower or guarantor under such REIT Loan or credit
enhancement or has granted a mortgage or security interest in Collateral to
secure such REIT Loan or credit enhancement, and shall include the successors
and assigns of such Persons.
3
"Payments" means, with respect to each REIT Loan, all monies due or to
become due under such REIT 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 REIT 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.
"Real Property Interest" means, with respect to each REIT 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.
"REIT Loans" means the REIT Loans or extensions of credit identified on
the REIT Loan Schedules.
"REIT Loan Amount" means the sum of (i) the aggregate amount of the
purchase price for all REIT 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 REIT Loans.
"REIT Loan Documents" means, with respect to each REIT Loan, (i) any and
all agreements between REIT (or any of its predecessors in interest) and any
third-party with respect to the REIT Loan or the Collateral described in the
REIT Loan and (ii) any and all documents connected with the REIT Loan executed
by any Obligor with respect to such REIT 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 documents amending, modifying or otherwise altering any REIT 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.
4
"REIT Loan Files" means the REIT Loan Documents and all other information
in the possession of REIT or ABNY pertaining to the REIT Loans.
"Lost Note Affidavit and Indemnity" means an affidavit and indemnity
executed by an authorized officer of the REIT, together with a copy of the
related Note.
"Security Agreement" means, with respect to any REIT 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 Purchase and Assumption Agreement by and between
Purchase and Atlantic Bank of New York, dated the date hereof (the "P&A
Agreement").
II. AGREEMENT TO PURCHASE.
On the Closing Date, REIT agrees to sell, and Purchaser agrees to
purchase, on the terms and conditions stated below, the REIT Loans described in
the schedules attached hereto as Schedule I and Schedule II (which shall
hereafter be referred to as the "REIT Loan Schedules") as updated as of a date
no more than two (2) Business Days prior to the Closing Date. The REIT Loan
Schedules shall be agreed to and signed by the REIT and Purchaser and shall set
forth the names of the Obligors and the date of the Note for each REIT Loan and
as of the date of the REIT Loan Schedule, the aggregate principal balance of
each REIT Loan, the accrued and unpaid interest of each REIT Loan as of that
date and the purchase price for each REIT Loan. Purchaser shall be under no
obligation to purchase a REIT Loan which is not included in the REIT Loan
Schedules. Specifically, Purchaser shall not be obligated to purchase a REIT
Loan approved or acquired by REIT after the date hereof unless Purchaser has
specifically agreed to purchase such REIT Loan in writing, subject to such REIT
Loans' compliance with the terms and conditions of this Agreement at the time of
the Closing.
III. PURCHASE OF REIT LOANS.
A. At the Effective Time, subject to the terms and conditions set forth
herein, REIT will sell, convey, assign and transfer to Purchaser and Purchaser
shall purchase from REIT, at the price and upon the terms and conditions set
forth herein, all of REIT's right, title and interest, as of the Effective Time,
in and to the REIT Loans, free and clear of all Encumbrances.
5
B. Purchaser shall pay REIT the REIT Loan Amount.
IV. RIGHTS TO PAYMENTS ON THE REIT LOANS.
Purchaser shall be entitled to all payments of principal and interest and
other recoveries on the REIT Loans received by REIT prior to the Closing Date
and not reflected in the REIT Loan Schedules and all payments of principal and
interest and other recoveries on the REIT Loans made on and after the Closing
Date within two (2) Business Days after receipt thereof.
V. CLOSING.
The closing of the purchase and sale of the REIT 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 REIT 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 REIT shall be true
and correct in all material respects as of the Closing Date, and no default by
REIT or event which, with the giving of notice or the passage of time or both,
would constitute an event of default by REIT 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 REIT under this Agreement
shall have been complied with in all material respects.
The obligation of REIT to sell the REIT 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 REIT.
A. REIT represents and warrants to Purchaser as of the date of this
Agreement, and shall be deemed to restate on the Closing Date, as follows:
6
1. The execution and delivery of this Agreement by REIT, and
the performance and compliance with the terms of this Agreement by
REIT, will not violate REIT'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 REIT is a party or by which
it is bound.
2. REIT 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 REIT, enforceable against REIT 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. REIT 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 REIT to
perform its obligations under this Agreement or to materially and
adversely affect the financial condition of REIT.
5. No litigation is pending or, to REIT's knowledge,
threatened against REIT that, if determined adversely to REIT, would
prohibit REIT from entering into this Agreement or that is likely to
adversely affect the ability of REIT to perform its obligations
under this Agreement or to materially and adversely affect the
financial condition of REIT.
6. REIT 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 REIT Loans by REIT
or the consummation of any other transactions contemplated hereby.
B. REIT represents and warrants to, and covenants with, Purchaser
with respect to each REIT Loan, that as of the date of each initial REIT Loan
Schedule and shall be deemed to restate on the Closing Date:
1. The information concerning each REIT Loan set forth on each
schedule attached hereto is true and correct as of the date
indicated thereon. All information in the REIT 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.
7
2. All of the REIT Loan Documents and all signatures therein
are genuine and represent the legal, valid and binding obligation of
the Obligor to REIT, enforceable against each Obligor in accordance
with their terms 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 REIT 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 REIT, has any
Equipment, Improvement or Real Property Interest been subleased
since the origination of the REIT Loan, in whole or in part.
3. Each of the REIT Loans is free and clear of all
Encumbrances and, to REIT's knowledge, the related Collateral is
free and clear of all Encumbrances. REIT 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 REIT Loan. REIT is the
sole owner and holder of such REIT Loan and has the full right,
power and authority with respect to such REIT Loan. REIT 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. REIT is the original payee of the note representing each
REIT Loan, except for REIT Loans originated by the National Bank of
Greece which shall be endorsed by the National Bank of Greece to
REIT prior to closing. With respect to each of the REIT 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 REIT Loan Documents,
constitute legal, valid and binding assignments of all such REIT
Loan Documents from REIT and legally and validly conveys all right,
title and interest of REIT in and to such REIT Loans. No broker or
other individual or entity is entitled to any unpaid commission or
other compensation with respect to any REIT 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.
8
5. REIT has delivered to Purchaser all of the REIT Loan Files
in respect of each REIT Loan or will do so at the Closing. REIT has
custody of all REIT Loan Files. Except with respect to the Notes for
which REIT 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 REIT Loan Documents with
respect to each REIT Loan are the only documents executed by REIT
(or, if the REIT Loan was assigned to REIT, by ABNY, the originator
thereof) and the Obligor with respect to such REIT Loan and the
related Collateral. The entire agreement between REIT and each
Obligor (whether originated by REIT or a third party) is contained
in the REIT Loan Documents and there are no warranties, agreements
or options not set forth therein. Other than the REIT Loan
Documents, there are no agreements with respect to the Collateral
between REIT and any Obligor.
6. No Obligor has asserted in writing to REIT any defense,
right or rescission, counterclaim or set off to its obligations with
respect to any REIT Loan. Neither REIT 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
REIT, 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 REIT 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 REIT 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 REIT has not received any assertion in writing
from any person that any of such events has occurred with respect to
any Equipment. REIT has never acquired title to any Collateral for
the REIT Loans, by virtue of realizing upon its security interest
thereon, by virtue of foreclosure or deed-in-lieu of foreclosure, or
otherwise.
9. Each REIT Loan constitutes and arose out of a bona fide
business transaction entered into in the ordinary course of REIT's
business.
10. All principal, interest and any other amounts due with
respect to each REIT Loan are payable in United States dollars in
regularly scheduled installments.
9
11. The Interest Rate on each of the REIT 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 REIT and all escrow deposits or
impounds relating to any Mortgage required to be deposited with REIT
by any Obligor have been deposited with REIT.
13. All mortgage recording taxes and recording and filing fees
relating to the origination of the REIT Loans have been paid.
14. Except as set forth on Schedule V (setting forth the list
of revolving REIT Loans and approved but not yet fully funded REIT
Loans, including construction REIT Loans), the proceeds of each REIT
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 REIT Loan (including,
without limitation, recording and filing fees) have been paid.
15. Except as set forth in Schedule VI, REIT 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. REIT has, with respect to each Mortgage in respect of a
REIT 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 REIT 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
REIT, 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 REIT under such policy and no
Person claiming through REIT has done, by act or omission, and REIT
has no knowledge of any matter, that would impair or diminish the
coverage of such policy.
10
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 REIT in
connection with Purchaser's investigation of each REIT Loan is true
and correct in all respects and does not omit any information
necessary to make the statements contained therein not misleading.
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 REIT's
knowledge, threatened, against or affecting any REIT Loan, REIT Loan
Document, Obligor or Collateral (including, without limitation, any
litigation commenced by or against the REIT).
20. Each REIT Loan has been originated, documented and
serviced in compliance with all applicable laws and regulations in
all material respects. REIT has not received any written notice of
violation of any law or regulation relating to any of the REIT 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 REIT Loan have been complied with. No
Obligor has any right of rescission or usury defense with respect to
any related REIT Loan, and there are no circumstances with respect
to any REIT Loan which could reasonably serve as the basis for any
claim of set-off, counterclaim or defense by any Obligor.
21. REIT 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 REIT 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 REIT Loans by REIT
pursuant to this Agreement (i) does not constitute a sale of all or
substantially all of REIT'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. REIT has administered and serviced each REIT 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 REIT Loan
Documents, or extended, renewed, supplemented, reduced,
subordinated, or terminated the term of, or anticipated the Payments
under or accepted the surrender of, any REIT Loan, (b) written off
any REIT Loan, (c) commenced or initiated any lawsuit, action or
proceeding with respect to any REIT Loan, (d) released any Obligor
under any REIT Loan or (e) released, taken possession of, or caused
any other Person to take possession of, any Collateral.
11
24. 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, REIT shall not, without the
prior written consent of the Purchaser, which consent shall not be
unreasonably withheld or delayed: (i) disburse any of the REIT 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;
(ii) 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 REIT 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; (iii) 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; or (iv) authorize or agree to make any commitments to
actions prohibited by this Section.
25. To REIT's knowledge, with respect to the Obligors, (i) to
the extent applicable to the REIT, the REIT 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)
to the extent applicable to the REIT, the REIT 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.
26. During the period from the date of this Agreement to the
Effective Time, except as expressly contemplated or permitted by
this Agreement, the REIT 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 REIT 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.
12
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 REIT's breach of a representation, warranty or covenant set forth in
Section VI hereof, which breach materially and adversely affects the value of a
REIT Loan or Purchaser's liability with respect to such REIT Loan (a "Material
Breach"), REIT shall, at Purchaser's option, repurchase such REIT Loan at a
repurchase price (the "Repurchase Price") equal to an amount equal to (a) the
Purchase Price paid by Purchaser for such REIT Loan, together with all accrued
and unpaid interest on such REIT 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 REIT Loan. Purchaser shall promptly notify REIT 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 REIT Loan or REIT 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. REIT
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
REIT 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 REIT Loan to REIT, which documents shall be prepared by
REIT 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 REIT's knowledge, such limitation shall
not relieve the REIT of its repurchase obligation under this Section VII. Except
as described below, if Purchaser renews a REIT Loan or consents to a material
modification of the terms of the REIT Loan or the related Collateral for such
REIT Loan (other than a renewal or modification approved by REIT prior to the
Closing Date), the REIT thereafter will have 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 REIT 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 REIT Loan within six months following the Closing Date shall
not constitute a renewal of the REIT Loan, provided (i) the amount of the REIT
Loan is not increased and (ii) there is no modification of the terms of the REIT
Loan or the related Collateral for such REIT Loan. A modification or amendment
solely limited to a rate adjustment shall not constitute a REIT Loan Renewal.
B. Except as provided in Section XII hereof, the obligations of REIT to
repurchase any REIT 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 REIT
13
repurchases any REIT 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 REIT, all REIT Loan Documents with respect to such REIT
Loan endorsed (without recourse and without representation or warranty of any
kind) and assigned to REIT and all REIT Loan Documents. Purchaser agrees to pay
to REIT, within two (2) Business Days after receipt thereof, any REIT Loan
payments received by Purchaser after the repurchase date.
VIII. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER.
Purchaser represents and warrants to, and covenants with, REIT 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 REIT, 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.
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 REIT Loans by Purchaser or the consummation of any other
transactions contemplated hereby.
14
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 REIT Loan Files
and the information set forth in Schedule VIII and that such information
constitutes all information requested except for that which REIT stated it did
not have. Purchase acknowledges that it has made its decision to purchase the
REIT Loans based on its independent review of such information and is not
relying on any representation or warranty, either express or implied, made by
REIT 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 REIT, 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 REIT 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 REIT 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."
B. REIT shall deliver the remainder of the REIT Loan Files in the
possession of REIT and ABNY to Purchaser no later than five (5) Business Days
from the Closing Date.
C. REIT 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 REIT
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;
15
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 REIT Loans.
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. REIT shall transfer the servicing rights with respect to the
REIT Loans at the Closing.
B. REIT Loan Payments. REIT shall forward to Purchaser all REIT Loan
payments received by REIT after the Closing Date within two (2) Business Days of
their receipt.
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
REIT's interest to Purchaser. REIT will have no obligation to Purchaser with
respect to the giving of such notice, provided, however, REIT 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 REIT Loan after the Closing Date regarding the assignment of
REIT's interest in such REIT Loan to Purchaser. REIT will have no obligation to
Purchaser with respect to the giving of such notice, provided, however, REIT
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. REIT's Indemnification. Notwithstanding any other provision of this
Agreement to the contrary, REIT 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) REIT's
actions or inactions prior to the Effective Time with respect to the REIT Loans
or the Collateral or (b) the breach by REIT of any representation, warranty or
covenant made by REIT contained in this Agreement; provided, that Purchaser
notify REIT of any such claim or action within fifteen (15) Business Days after
16
Purchaser has received actual notice that the same has been made or instituted,
as the case may be, but failure to so notify REIT shall not relieve REIT 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. REIT may assume the
defense of any such claim or action by attorneys of REIT's own choosing, and
reasonably acceptable to Purchaser, at its expense but REIT 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
REIT harmless from and against any of its Losses in connection with any claim
made or action instituted against REIT 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 REIT Loans or the breach by Purchaser of any representation,
warranty or covenant made by Purchaser contained in this Agreement; provided,
that REIT notify Purchaser of any such claim or action within fifteen (15)
Business Days after REIT 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 REIT, at its
expense but Purchaser may not settle such claim or action without REIT's prior
written consent, which will not be unreasonably delayed or withheld.
XIII. CONFIDENTIALITY.
Purchaser and REIT 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.
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:
17
(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
(b) If to REIT:
William Aukamp, Esq.
Harvey, Pennigton, Herting & Renneisen, Ltd.
Eleven Penn Center, 29th Floor
1835 Market Street
Philadelphia, PA 19103-2989
Telephone Number: (212) 563-4470
Facsimile Number: (215) 568-1044
With copies to:
Matthew Dyckman, Esq.
Thacher Proffitt & Wood LLP
1700 Pennsylvania Avenue, NW
Washington, DC 20006
Telephone Number: (202) 626-5647
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.
18
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 REIT Loan shall not invalidate or render unenforceable
such 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
19
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 REIT 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.
REIT 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 REIT 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
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 REIT, 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
REIT 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 REIT
is selling, the REIT Loans and not a debt instrument of REIT or any other
security. Accordingly, each party intends to treat the transaction for federal
income tax purposes, and each transaction shall be reflected on REIT's books and
records, tax returns, balance sheet and other financial statements, as a sale by
REIT, and a purchase by Purchaser, of the REIT Loans.
XXVI. MODIFICATION.
No supplement, modification or amendment of this Agreement shall be valid
unless executed in writing by both parties hereto.
20
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.
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.
21
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
OMEGA COMMERCIAL MORTGAGE CORP. THE FIRST NATIONAL BANK OF IPSWICH
By: /s/ William M. Aukamp By: /s/ Donald P. Gill
------------------------- ----------------------
William M. Aukamp Donald P. Gill
Executive Vice President and President and Chief Executive
Secretary Officer